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THE ART OF CROSS-EXAMINATION

^^^^

THE ART OF

CROSS-EXAMINATION

FRANCIS L. WELLMAN

OF TBX NXW YORK BAR

WITH THE CROSS-EXAMINATIONS OF IMPORTANT
WITNESSES IN SOME CELEBRATED CASES

THE MACMILLAN COMPANY

LONDON: MACMIUAN & CO., LTD.
1903

All rights TMStrved

ccc 13 : . . i

X.c^ O^^^o^ 5^*^^ '

Set up, dectzotjped, and published December, 1903.

Norwood Press

y, S. Cusbing & Co. — Berwick & Smith Co.

Norwood, Mass., U.S. A.

{To titg ^ons
RODERIC AND ALLEN

WHO HAVE EXPRESSED THEIR INTENTION
TO ENTER THE LEGAL PROFESSION

THIS BOOK

IS AFFECTIONATELY DEDICATED

"Cross-examination, — the rarest, the most useful, and
the most difficult to be acquired of all the accomplishments
of the advocate. ... It has always been deemed the surest
test of truth and a better security than the oath." — Cox.

PREFACE

In offering this book to the legal profession I do
not intend to arrogate to myself any superior knowledge
upon the subject, excepting in so far as it may have
been gleaned from actual experience. Nor have I
attempted to treat the subject in any scientific, elabo-
rate, or exhaustive way; but merely to make some
suggestions upon the art of cross-examination, which
have been gathered as a result of twenty-five years'
court practice, during which time I have examined and
cross-examined about fifteen thousand witnesses, drawn
from all classes of the community.

If what is here written affords anything of instruction
to the younger members of my profession, or of interest
or entertainment to the public, it will amply justify the
time taken from my summer vacation to put in readable
form some points from my experience upon this most
difficult subject.

Bar Harbor, Maine,
September i, 1903.

CONTENTS

CUAPTXK FAGB

I. INTRODUCTORY ii

II. THE MANNER OF CROSS-EXAMINATION ... 21

III. THE MATTER OF CROSS-EXAMINATION ... 37

IV. CROSS-EXAMINATION OF THE PERJURED WITNESS 55
V. CROSS-EXAMINATION OF EXPERTS .... 79

VI. THE SEQUENCE OF CROSS-EXAMINATION . . loi

VII. SILENT CROSS-EXAMINATION in

VIII. CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES 119

CM — IX. GOLDEN RULES FOR EXAMINATION OF WITNESSES 133

X. SOME FAMOUS CROSS-EXAMINERS AND THEIR

METHODS 143

XI. THE CROSS-EXAMINATION OF RICHARD PIGOTT

BEFORE THE PARNELL COMMISSION . .173

f XII. THE CROSS-EXAMINATION OF DR. IN THE

" CARLYLE W. HARRIS CASE 195

XIII. THE CROSS-EXAMINATION OF THOMAS J. MIN-

NOCK IN THE BELLEVUE HOSPITAL CASE . 213

^ XIV. THE CROSS-EXAMINATION OF JEREMIAH SMITH

IN THE WILLIAM PALMER CASE .... 247

XV. THE CROSS-EXAMINATION OF RUSSELL SAGE IN

THE LAIDLAW-SAGE CASE 267

CHAPTER I

INTRODUCTORY

CHAPTER I

INTRODUCTORY

" The issue of a cause rarely depends upon a speech
and is but seldom even affected by it. But there is never
a cause contested, the result of which is not mainly de-
pendent upon the skill with which the advocate conducts
his cross-examination."

This is the conclusion arrived at by one of England's
greatest advocates at the close of a long and eventful
career at the Bar. It was written some fifty years ago
and at a time when oratory in public trials was at its
height It is even more true at the present time, when
what was once commonly reputed a " great speech " is
seldom heard in our courts, — because the modem meth-
ods of practising our profession have had a tendency
to discourage court oratory and the development of
orators. The old-fashioned orators who were wont
to " grasp the thunderbolt " are now less in favor
than formerly. With our modern jurymen the arts of
oratory, — "law-papers on fire," as Lord Brougham's
speeches used to be called, — though still enjoyed as im-
passioned literary efforts, have become almost useless as
persuasive arguments or as a " summing up " as they are
now called.

THE ART OF CROSS-EXAMINATION

Modern juries, especially in large cities, are composed
of practical business men accustomed to think for them-
selves, experienced in the ways of life, capable of forming
estimates and making nice distinctions, unmoved by the
passions and prejudices to which court oratory is nearly
always directed. Nowadays, jurymen, as a rule, are wont
to bestow upon testimony the most intelligent and pains-
taking attention, and have a keen scent for truth. It is
not intended to maintain that juries are no longer human,
or that in certain cases they do not still go widely astray,
led on by their prejudices if not by their passions. Nev-
ertheless, in the vast majority of trials, the modem jury-
man, and especially the modem city juryman, — it is
in our large cities that the greatest number of litigated
cases is tried, — comes as near being the model arbiter of
fact as the most optimistic champion of the institution of
trial by jury could desire.

I am aware that many members of my profession still
sneer at trial by jury. Such men, however, — when not
among the unsuccessful and disgmntled, — will, with but
few exceptions, be found to have had but little practice
themselves in court, or else to belong to that ever grow-
ing class in our profession who have relinquished their
court practice and are b\iilding up fortunes such as were
never dreamed of in the legal profession a decade ago,
by becoming what may be styled business lawyers —
men who are learned in the law as a profession, but who
through opportunity, combined with rare commercial abil-

INTRODUCTORY

ity, have come to apply their learning — especially their
knowledge of corporate law — to great commercial enter-
prises, combinations, organizations, and reorganizations,
and have thus come to practise law as a business.

To such as these a book of this nature can have but
little interest. It is to those who by choice or chance
are, or intend to become, engaged in that most laborious
of all forms of legal business, the trial of cases in court,
that the suggestions and experiences which follow are
especially addressed.

It is often truly said that many of our best lawyers
— I am speaking now especially of New York City —
are withdrawing from court practice because the nature
of the litigation is changing. To such an extent is this
change taking place in some localities that the more im-
portant commercial cases rarely reach a court decision.
Our merchants prefer to compromise their difficulties,
or to write ofif their losses, rather than enter into litiga-
tions that must remain dormant in the courts for upward
of three years awaiting their turn for a hearing on the
overcrowded court calendars. And yet fully six thou-
sand cases of one kind or another are tried or disposed
of yearly in the Borough of Manhattan alone.

This congestion is not wholly due to lack of judges,
or that they are not capable and industrious men ; but is
largely, it seems to me, the fault of the system in vogue
in all our American courts of allowing any lawyer, duly
enrolled as a member of the Bar, to practise in the

THE ART OF CROSS-EXAMINATION

highest courts. In the United States we recognize no
distinction between barrister and solicitor; we are all
barristers and solicitors by turn. One has but to fre-
quent the courts to become convinced that, so long as
the ten thousand members at the New York County
Bar all avail themselves of their privilege to appear in
court and try their own clients' cases, the great majority
of the trials will be poorly conducted, and much valuable
time wasted.

The conduct of a case in court is a peculiar art for
which many men, however learned in the law, are not
fitted ; and where a lawyer has but one or even a dozen
experiences in court in each year, he can never become
a competent trial lawyer. I am not addressing myself
to clients, who often assume that, because we are duly
qualified as lawyers, we are therefore competent to try
their cases; I am speaking in behalf of our courts,
against the congestion of the calendars, and the conse-
quent crowding out of weighty commercial litigations.

One experienced in the trial of causes will not require,
at the utmost, more than a quarter of the time taken by
the most learned inexperienced lawyer in developing his
facts. His case will be thoroughly prepared and under-
stood before the trial begins. His points of law and
issues of fact will be clearly defined and presented to the
court and jury in the fewest possible words. He will in
this way avoid many of the erroneous rulings on ques-
tions of law and evidence which are now upsetting so

INTRODUCTORY

many verdicts on appeal. He will not only complete
his trial in shorter time, but he will be likely to bring
about an equitable verdict in the case which may not be
appealed from at all, or, if appealed, will be sustained by
a higher court, instead of being sent back for a retrial
and the consequent consumption of the time of another
judge and jury in doing the work all over again.^

These facts are being more and more appreciated each
year, and in our local courts there is already an ever
increasing coterie of trial lawyers, who are devoting the
principal part of their time to court practice.

A few lawyers have gone so far as to refuse direct
communication with clients excepting as they come rep-
resented by their own attorneys. It is pleasing to note
that some of our leading advocates who, having been
called away from large and active law practice to enter
the government service, have expressed their intention,
when they resume the practice of the law, to refuse all
cases where clients are not already represented by com-
petent attorneys, recognizing, at least in their own prac-
tice, the English distinction between the barrister and
solicitor. We are thus beginning to appreciate in this
country what the English courts have so long recog-
nized: that the only way to insure speedy and intelli-
gently conducted litigations is to inaugurate a custom

^ In the Borough of Manhattan at the present time thirty-three per cent of
the cases tried are appealed, and forty-two per cent of the cases appealed are
reversed and sent back for re-trial as shown by the court statistics.
B 17

THE ART OF CROSS-EXAMINATION

of confining court practice to a comparatively limited
number of trained trial lawyers.

The distinction between general practitioners and
specialists is already established in the medical profes-
sion and largely accepted by the public. Who would
think nowadays of submitting himself to a serious opera-
tion at the hands of his family physician, instead of
calling in an experienced surgeon to handle the knife ?
And yet the family physician may have once been com-
petent to play the part of surgeon, and doubtless has
had, years ago, his quota of hospital experience. But
he so infrequently enters the domain of surgery that he
shrinks from undertaking it, except under circumstances
where there is no alternative. There should be a simi-
lar distinction in the legal profession. The family law-
yer may have once been competent to conduct the
litigation; but he is out of practice — he is not "in
training" for the competition.

There is no short cut, no royal road to proficiency, in
the art of advocacy. It is experience, and one might
almost say experience alone, that brings success. I am
not speaking of that small minority of men in all walks
of life who have been touched by the magic wand of
genius, but of men of average endowments and even
special aptitude for the calling of advocacy ; with them
it is a race of experience. The experienced advocate
can look back upon those less advanced in years or expe-
rience, and rest content in the thought that they are just

INTRODUCTORY

so many cases behind him; that if he keeps on, with
equal opportunities in court, they can never overtake
him. Some day the public will recognize this fact
But at present, what does the ordinary litigant know of
the advantages of having counsel to conduct his case
who is " at home " in the court room, and perhaps even
acquainted with the very panel of jurors before whom
his case is to be heard, through having already tried one
or more cases for other clients before the same men?
How little can the ordinary business man realize the
value to himself of having a lawyer who understands the
habits of thought and of looking at evidence — the bent
of mind — of the very judge who is to preside at the
trial of his case. Not that our judges are not eminently
fair-minded in the conduct of trials; but they are men
for all that, oftentimes very human men; and the trial
lawyer who knows his judge, starts with an advantage
that the inexperienced practitioner little appreciates.
How much, too, does experience count in the selection
of the jury itself — one of the " fine arts" of the advocate I
These are but a few of the many similar advantages one
might enumerate, were they not apart from the subject
we are now concerned with — the skill of the advocate
in conducting the trial itself, once^ the jury has been
chosen.

When the public realizes that a good trial lawyer is
the outcome, one might say of generations of witnesses,
when clients fully appreciate the dangers they run in

THE ART OF CROSS-EXAMINATION

intrusting their litigations to so-called "office lawyers"
with little or no experience in court, they will insist upon
their briefs being intrusted to those who make a spe-
cialty of court practice, advised and assisted, if you will,
by their own private attorneys. One of the chief dis-
advantages of our present system will be suddenly swept
away; the court calendars will be cleared by speedily
conducted trials ; issues will be tried within a reasonable
time after they are framed ; the commercial cases, now
disadvantageously settled out of court or abandoned
altogether, will return to our courts to the satisfaction
both of the legal profession and of the business commu-
nity at large; causes will be more skilfully tried — the
art of cross-examination more thoroughly understood.

CHAPTER II

THE MANNER OF CROSS-EXAMINATION

CHAPTER II

THE MANNER OF CROSS-EXAMINATION

It needs but the simple statement of the nature of
cross-examination to demonstrate its indispensable char-
acter in all trials of questions of fact. No cause reaches
the stage of litigation unless there are two sides to it.
If the witnesses on one side deny or qualify the state-
ments made by those on the other, which side is telling
the truth ? Not necessarily which side is offering per-
jured testimony, — there is far less intentional perjury in
the courts than the inexperienced would believe, — but
which side is honestly mistaken? — for, on the other
hand, evidence itself is far less trustworthy than the
public usually realizes. The opinions of which side are
warped by prejudice or blinded by ignorance ? Which
side has had the power or opportunity of correct observa-
tion ? How shall we tell, how make it apparent to a jury
of disinterested men who are to decide between the liti-
gants ? Obviously, by the means of cross-examination.

If all witnesses had the honesty and intelligence to
come forward and scrupulously follow the letter as well
as the spirit of the oath, " to tell the truth, the whole

THE ART OF CROSS-EXAMINATION

truth, and nothing but the truth/' and if all advocates on
either side had the necessary experience, combined with
honesty and intelligence, and were similarly sworn to
develop the whole truth and nothing but the truth, of
course there would be no occasion for cross-examination,
and the occupation of the cross-examiner would be gone.
But as yet no substitute has ever been found for cross-
examination as a means of separating truth from false-
hood, and of reducing exaggerated statements to their
true dimensions.

The system is as old as the history of nations. In-
deed, to this day, the account given by Plato of Socrates's
cross-examination of his accuser, Miletus, while defending
himself against the capital charge of corrupting the youth
of Athens, may be quoted as a masterpiece in the art of
cross-questioning.

Cross-examination is generally considered to be the
most difficult branch of the multifarious duties of the
advocate. Success in the art, as some one has said,
comes more often to the happy possessor of a genius
for it. Great lawyers have often failed lamentably in
it, while marvellous success has crowned the efforts of
those who might otherwise have been regarded as of a
mediocre grade in the profession. Yet personal expe-
rience and the emulation of others trained in the art,
are the surest means of obtaining proficiency in this
all-important prerequisite of a competent trial lawyer.

It requires the greatest ingenuity; a habit of logical

THE MANNER OF CROSS-EXAMINATION

thought; clearness of perception in general; infinite
patience and self-control; power to read men's minds
intuitively, to judge of their characters by their faces, to
appreciate their motives; ability to act with force and
precision; a masterful knowledge of the subject-matter
itself ; an extreme caution ; and, above all, the instinct to
discover the weak point in the witness under examina-
tion.

One has to deal with a prodigious variety of witnesses
testifying under an infinite number of differing circum-
stances. It involves all shades and complexions of
human morals, human passions, and human intelligence.
It is a mental duel between counsel and witness.

In discussing the methods to employ when cross-
examining a witness, let us imagine ourselves at work in
the trial of a cause, and at the close of the direct exami-
nation of a witness called by our adversary. The first
inquiry would naturally be. Has the witness testified to
anything that is material against us ? Has his testimony
injured our side of the case ? Has he made an impres-
sion with the jury against us ? Is it necessary for us to
cross-examine him at all ?

Before dismissing a witness, however, the possibility
of being able to elicit some new facts in our own favor
should be taken into consideration. If the witness is
apparently truthful and candid, this can be readily done
by asking plain, straightfofward questions. If, however,
there is any reason to doubt the willingness of the wit-

THE ART OF CROSS-EXAMINATION

ness to help develop the truth, it may be necessary to
proceed with more caution, and possibly to put the wit-
ness in a position where it will appear to the jury that he
could tell a good deal if he wanted to, and then leave
him. The jury will thus draw the inference that, had he
spoken, it would have been in our favor.

But suppose the witness has testified to material facts
against us, and it becomes our duty to break the force
of his testimony, or abandon all hope of a jury verdict.
How shall we begin? How shall we tell whether the
witness has made an honest mistake, or has committed
perjury? The methods in his cross-examination in the
two instances would naturally be very different. There
is a marked distinction between discrediting the testi-
mony and discrediting the witness. It is largely a matter
of instinct on the part of the examiner. Some people
call it the language of the eye, or the tone of the voice,
or the countenance of the witness, or his manner of tes-
tifying, or all combined, that betrays the wilful perjurer.
It is difficult to say exactly what it is, excepting that
constant practice seems to enable a trial lawyer to form
a fairly accurate judgment on this point. A skilful
cross-examiner seldom takes his eye from an important
witness while he is being examined by his adversary.
Every expression of his face, especially his mouth, even
every movement of his hands, his manner of expressing
himself, his whole bearing — all help the examiner to
arrive at an accurate estimate of his integrity.

THE MANNER OF CROSS-EXAMINATION

Let us assume, then, that we have been correct in our
judgment of this particular witness, and that he is trying to
describe honestly the occurrences to which he has testified,
but has fallen into a serious mistake, through ignorance,
blunder, or what not, which must be exposed to the minds
of the jury. How shall we go about it? This brings
us at once to the first important factor in our discus-
sion, the manner of the cross-examiner.

It is absurd to suppose that any witness who has sworn
positively to a certain set of facts, even if he has inadver-
tently stretched the truth, is going to be readily induced
by a lawyer to alter them and acknowledge his mistake.
People as a rule do not reflect upon their meagre oppor-
tunities for observing facts, and rarely suspect the frailty
of their own powers of observation. They come to
court, when summoned as witnesses, prepared to tell
what they think they know ; and in the beginning they
resent an attack upon their story as they would one upon
their integrity.

If the cross-examiner allows the witness to see, by his
manner toward him at the start, that he distrusts his
integrity, he will straighten himself in the witness chair
and mentally defy him at once. If, on the other hand,
the counsel's manner is courteous and conciliatory, the
witness will soon lose the fear all witnesses have of the
cross-examiner, and can almost imperceptibly be induced
to enter into a discussion of his testimony in a fair-
minded spirit, which, if the cross-examiner is clever, will

THE ART OF CROSS-EXAMINATION

soon disclose the weak points in the testimony. The
sympathies of the jury are invariably on the side of the
witness, and they are quick to resent any discourtesy
toward him. They are willing to admit his mistakes,
if you can make them apparent, but are slow to believe
him guilty of perjury. Alas, how often this is lost sight
of in our daily court experiences! One is constantly
brought face to face with lawyers who act as if they
thought that every one who testifies against their side of
the case is committing wilful perjury. No wonder they
accomplish so little with their CROSS-examination I By
their shouting, brow-beating style they often confuse the
wits of the witness, it is true ; but they fail to- discredit
him with the jury. On the contrary, they elicit sympathy
for the witness they are attacking, and little realize that
their " vigorous cross-examination," at the end of which
they sit down with evident self-satisfaction, has only
served to close effectually the mind of at least one fair-
minded juryman against their side of the case, and as
likely as not it has brought to light some important fact
favorable to the other side which had been overlooked
in the examination-in-chief.

There is a story told of Reverdy Johnson, who once,
in the trial of a case, twitted a brother lawyer with
feebleness of memory, and received the prompt retort,
" Yes, Mr. Johnson ; but you will please remember that,
unlike the lion in the play, I have something more to do
than roar^^

THE MANNER OF CROSS-EXAMINATION

The only lawyer I ever heard employ this roaring
method successfully was Benjamin F. Butler. With him
politeness, or even humanity, was out of the question.
And it has been said of him that "concealment and
equivocation were scarcely possible to a witness under
the operation of his methods." But Butler had a won-
derful personality. He was aggressive and even pugna-
cious, but picturesque withal — witnesses were afraid of
him. Butler was popular with the masses; he usually
had the numerous " hangers-on " in the court room on
his side of the case from the start, and each little point
he would make with a witness met with their ready and
audible approval. This greatly increased the embarrass-
ment of the witness and gave Butler a decided advan-
tage. It must be remembered also that Butler had a
contempt for scruple which would hardly stand him in
good stead at the present time. Once he was cross-
questioning a witness in his characteristic manner.
The judge interrupted to remind him that the witness
was a Harvard professor. " I know it, your Honor,"
replied Butler ; " we hanged one of them the other day." ^

On the other hand, it has been said of Rufus Choate,
whose art and graceful qualities of mind certainly entitle
him to the foremost rank among American advocates,
that in the cross-examination of witnesses, " He never
aroused opposition on the part of the witness by attack-
ing him, but disarmed him by the quiet and courteous

» "Life Sketches of Eminent Lawyers," G.'j. Clark, Esq.
29

THE ART OF CROSS-EXAMINATION

manner in which he pursued his examination. He was
quite sure, before giving him up, to expose the weak
parts of his testimony or the bias, if any, which detracted
from the confidence to be given it." ^ [One of Choate's
bon mots was that " a lawyer's vacation consisted of the
space between the question put to a witness and his
answer."]

Judah P. Benjamin, " the eminent lawyer of two con-
tinents," used to cross-examine with his eyes. "No
witness could look into Benjamin's black, piercing eyes
and maintain a lie."

Among the English barristers. Sir James Scarlett,
Lord Abinger, had the reputation, as a cross-examiner,
of having outstripped all advocates who, up to that
time, had appeared at the British Bar. "The gentle-
manly ease, the polished courtesy, and the Christian
urbanity and affection, with which he proceeded to the
task, did infinite mischief to the testimony of witnesses
who were striving to deceive, or upon whom he found
it expedient to fasten a suspicion."

A good advocate should be a good actor. The most
cautious cross-examiner will often elicit a damaging an-
swer. Now is the time for the greatest, self-control. If
you show by your face how the answer hurt, you may
lose your case by that one point alone. How often
one sees the cross-examiner fairly staggered by such an
answer. He pauses, perhaps blushes, and after he has

1 ^ Memories of Rufus Choate,'' Neilson.
30

THE MANNER OF CROSS-EXAMINATION

allowed the answer to have its full effect, finally regains
his self-possession, but seldom his control of the witness.
With the really experienced trial lawyer, such answers,
instead of appearing to surprise or disconcert him, will
seem to come as a matter of course, and will fall perfectly
flat. He will proceed with the next question as if noth-
ing had happened, or even perhaps give the witness an
incredulous smile, as if to say, "Who do you suppose
would believe that for a minute?"

An anecdote apropos of this point is told of Rufus
Choate. " A witness for his antagonist let fall, with no
particular emphasis, a statement of a most important fact
from which he saw that inferences greatly damaging to
his client's case might be drawn if skilfully used. He
suffered the witness to go through his statement and
then, as if he saw in it something of great value to
himself, requested him to repeat it carefully that he
might take it down correctly. He as carefully avoided
cross-examining the witness, and in his argument made
not the least allusion to his testimony. When the op-
posing counsel, in his close, came to that part of his case
in his argument, he was so impressed with the idea that
Mr. Choate had discovered that there was something in
that testimony which made in his favor, although he
could not see how, that he contented himself with
merely remarking that though Mr. Choate had seemed
to think that the testimony bore in favor of his client,
it seemed to him that it went to sustain the opposite

THE ART OF CROSS-EXAMINATION

side, and then went on with the other parts of his
case." ^

It is the love of combat which every man possesses
that fastens the attention of the jury upon the progress
of the trial. The counsel who has a pleasant person-
ality ; who speaks with apparent frankness ; who appears
to be an earnest searcher after truth ; who is courteous
to those who testify against him ; who avoids delaying
constantly the progress of the trial by innumerable ob-
jections and exceptions to perhaps incompetent but
harmless evidence; who seems to know what he is
about and sits down when he has accomplished it, ex-
hibiting a spirit of fair play on all occasions — he it is
who creates an atmosphere in favor of the side which
he represents, a powerful though unconscious influence
with the jury in arriving at their verdict. Even if, owing
to the weight of testimony, the verdict is against him,
yet the amount will be far less than the client had
schooled himself to expect.

On the other hand, the lawyer who wearies the court
and the jury with endless and pointless cross-exami-
nations ; who is constantly losing his temper and showing
his teeth to the witnesses; who wears a sour, anxious
expression ; who possesses a monotonous, rasping, pene-
trating voice ; who presents a slovenly, unkempt personal
appearance; who is prone to take unfair advantage of
witness or counsel, and seems determined to win at all

^ << Memories of Rufiis Choate," Neilson.
32

THE MANNER OF CROSS-EXAMINATION

hazards — soon prejudices a jury against himself and
the client he represents, entirely irrespective of the sworn
testimony in the case.

The evidence often seems to be going all one way,
when in reality it is not so at all. The cleverness of the
cross-examiner has ia great deal to do with this ; he can
often create an atmosphere which will obscure much evi-
dence that would otherwise tell against him. This is
part of the " generalship of a case " in its progress to the
argument, which is of such vast consequence. There is
eloquence displayed in the examination of witnesses as
well as on the argument. " There is matter in manner'^
I do not mean to advocate that exaggerated manner one
often meets with, which divides the attention of your
hearers between yourself and your question, which often
diverts the attention of the jury from the point you are
trying to make and centres it upon your own idiosyn-
crasies of manner and speech. As the man who was
somewhat deaf and could not get near enough to Henry
Clay in one of his finest efforts, exclaimed, " I didn't
hear a word he said, but, great Jehovah, didn't he make
the motions I "

The very intonations of voice and the expression of
face of the cross-examiner can be made to produce a
marked effect upon the jury and enable them to appre-
ciate fully a point they might otherwise lose altogether.

" Once, when cross-examining a witness by the name
of Sampson, who was sued for libel as editor of the
c 33

THE ART OF CROSS-EXAMINATION

Referee, Russell asked the witness a question which he
did not answer. 'Did you hear my question?' said
Russell in a low voice. ' I did,' said Sampson. * Did
you understand it ? ' asked Russell, in a still lower voice.
* I did,' said Sampson. ' Then,' said Russell, raising his
voice to its highest pitch, and looking as if he would
spring from his place and seize the witness by the throat,
'why have you not answered it? Tell the jury why
you have not answered it.' A thrill of excitement ran
through the court room. Sampson was overwhelmed,
and he never pulled himself together again." ^

Speak distinctly yourself, and compel your witness to
do so. Bring out your points so clearly that men of the
most ordinary intelligence can understand them. Keep
your audience — the jury — always interested and on the
alert Remember it is the minds of the jury you are
addressing, even though your question is put to the wit-
ness. Suit the modulations of your voice to the subject
under discussion. Rufus Choate's voice would seem to
take hold of the witness, to exercise a certain sway over
him, and to silence the audience into a hush. He allowed
his rich voice to exhibit in the examination of witnesses,
much of its variety and all of its resonance. The contrast
between his tone in examining and that of the counsel
who followed him was very marked,

" Mr. Choate's appeal to the jury began long before
his final argument ; it began when he first took his seat

» "Life of Lord Russell," O'Brien.
34

THE MANNER OF CROSS-EXAMINATION

before them and looked into their eyes. He generally
contrived to get his seat as near them as was convenient,
if possible having his table close to the Bar, in front of
their seats, and separated from them only by a narrow
space for passage. There he sat, calm, contemplative ;
in the midst of occasional noise and confusion solemnly
unruffled ; always making some little headway either with
the jury, the court, or the witness ; never doing a single
thing which could by possibility lose him favor, ever doing
some little thing to win it ; smiling benignantly upon the
counsel when a good thing was said ; smiling sympathiz-
ingly upon the jury when any jurjnnan laughed or made
an inquiry ; wooing them all the time with his magnetic
glances as a lover might woo his mistress ; seeming to
preside over the whole scene with an air of easy superior-
ity ; exercising from the very first moment an indefinable
sway and influence upon the minds of all before and
around him. His manner to the jury was that of a
friend^ a friend solicitous to help them through their
tedious investigation ; never that of an expert combatant,
intent on victory, and looking upon them as only instru-
ments for its attainment." ^

i«< Reminiscences of Rufus Choate,^^ Pailcer.

CHAPTER III

THE MATTER OF CROSS-EXAMINATION

CHAPTER III

THE MATTER OF CROSS-EXAMINATION

If by experience we have learned the first lesson of
our art, — to control our manner toward the witness even
under the most trying circumstances, — it then becomes
important that we should turn our attention to the
matter of our cross-examination. By our manner toward
him we may have in a measure disarmed him, or at least
put him off his guard, while his memory and conscience
are being ransacked by subtle and searching questions,
the scope of which shall be hardly apparent to himself ;
but it is only with the matter of our cross-examination
that we can hope to destroy him.

What shall be our first mode of attack? Shall we
adopt the fatal method of those we see around us daily
in the courts, and proceed to take the witness over the
same story that he has already given our adversary, in
the absurd hope that he is going to change it in the
repetition, and not retell it with double effect upon the
jury? Or shall we rather avoid carefully his original
story, except in so far as is necessary to refer to it in
order to point out its weak spots? Whatever we do,

THE ART OF CROSS-EXAMINATION

let us do it with quiet dignity, with absolute fairness to
the witness ; and let us frame our questions in such sim-
ple language that there can be no misunderstanding or
confusion. Let us imagine ourselves in the jury box, so
that we may see the evidence from their standpoint. We
are not trying to make a reputation for ourselves with
the audience as " smart " cross-examiners. We are think-
ing rather of our client and our employment by him to
win the jury upon his side of the case. Let us also avoid
asking questions recklessly, without any definite purpose.
Unskilful questions are worse than none at all, and only
tend to uphold rather than to destroy the witness.

All through the direct testimony of our imaginary
witness, it will remembered, we were watching his every
movement and expression. Did we find an opening for
our cross-examination ? Did we detect the weak spot in
his narrative ? If so, let us waste no time, but go direct
to the point. It may be that the witness's situation in
respect to the parties or the subject-matter of the suit
should be disclosed to the jury, as one reason why his
testimony has been shaded somewhat in favor of the side
on which he testifies. It may be that he has a direct
interest in the result of the litigation, or is to receive
some indirect benefit therefrom. Or he may have some
other tangible motive which he can gently be made to
disclose. Perhaps the witness is only suffering from
that partisanship, so fatal to fair evidence, of which often-
times the witness himself is not conscious. It may even

THE MATTER OF CROSS-EXAMINATION

be that, if the jury only knew the scanty means the wit-
ness has had for obtaining a correct and certain knowl-
edge of the very facts to which he has sworn so glibly,
aided by the adroit questioning of the opposing counsel,
this in itself would go far toward weakening the effect
of his testimony. It may appear, on the other hand,
that the witness had the best possible opportunity to
observe the facts he speaks of, but had not the intelli-
gence to observe these facts correctly. Two people may
witness the same occurrence and yet take away with
them an entirely different impression of it; but each,
when called to the witness stand, may be willing to swear
to that impression as a fact. Obviously, both accounts
of the same transaction cannot be true ; whose impres-
sions were wrong ? Which had the better opportunity
to see? Which had the keener power of perception?
All this we may very properly term the matter of our
cross-examination.

It is one thing to have the opportunity of observation,
or even the intelligence to observe correctly, but it is still
another to be able to retain accurately, for any length of
time, what we have once seen or heard, and what is per-
haps more difficult still — to be able to describe it intelli-
gibly. Many witnesses have seen one part of a transaction
and heard about another part, and later on become con-
fused in their own minds, or perhaps only in their modes
of expression, as to what they have seen themselves and
what they have heard from others. All witnesses are

THE ART OF CROSS-EXAMINATION

prone to exaggerate — to enlarge or minimize the facts
to which they take oath.

A very common t)rpe of witness, met with almost
daily, is the man who, having witnessed some event
years ago, suddenly finds that he is to be called as a
court witness. He immediately attempts to recall his
original impressions ; and gradually, as he talks with the
attorney who is to examine him, he amplifies his story
with new details which he leads himself, or is led, to
believe are recollections and which he finally swears to
as facts. Many people seem to fear that an " I don't
know " answer will be attributed to ignorance on their
part. Although perfectly honest in intention, they are
apt, in consequence, to complete their story by recourse
to their imagination. And few witnesses fail, at least
in some part of their story, to entangle facts with their
own beliefs and inferences.

All these considerations should readily suggest a line
of questions, varying with each witness examined, that
will, if closely followed, be likely to separate appearance
from reality and to reduce exaggerations to their proper
proportions. It must further be borne in mind that the
jury should not merely see the mistake ; they should be
made to appreciate at the time why and whence it arose.
It is fresher then and makes a more lasting effect than
if left until the summing up, and then drawn to the
attention of the jury.

The experienced examiner can usually tell, after a few

THE MATTER OF CROSS-EXAMINATION

simple questions, what line to pursue. Picture the scene
in your own mind; closely inquire into the sources of
the witnesses information, and draw your own conclusions
as to how his mistake arose, and why he formed his
erroneous impressions. Exhibit plainly your belief in
his integrity and your desire to be fair with him, and try
to beguile him into being candid with you* Then when
the particular foible which has affected his testimony has
once been discovered, he can easily be led to expose it
to the jury. His mistakes should be drawn out often by
inference rather than by direct question, because all wit-
nesses have a dread of self-contradiction. If he sees the
connection between your inquiries and his own story, he
will draw upon his imagination for explanations, before
you get the chance to point out to him the inconsistency
between his later statement and his original one. It is
often wise to break the effect of a witness's story by put-
ting questions to him that will acquaint the jury at once
with the fact that there is another more probable story
to be told later on, to disclose to them something of the
defence, as it were. Avoid the mistake, so common
among the inexperienced, of making much of trifling
discrepancies. It has been aptly said that " juries have
no respect for small triumphs over a witness's self-posses-
sion or memory." Allow the loquacious witness to talk
on ; he will be sure to involve himself in difficulties from
which he can never extricate himself. Some witnesses
prove altogether too much; encourage them and lead

THE ART OF CROSS-EXAMINATION

them by degrees into exaggerations that will conflict
with the common sense of the jury. Under no circum-
stances put a false construction on the words of a witness ;
there are few faults in an advocate more fatal with a
jury.

If, perchance, you obtain a really favorable answer,
leave it and pass quietly to some other inquiry. The
inexperienced examiner in all probability will repeat the
question with the idea of impressing the aidmission upon
his hearers, instead of reserving it for the summing up,
and will attribute it to bad luck that his witness corrects
his answer or modifies it in some way, so that the point
is lost. He is indeed a poor judge of human nature
who supposes that if he exults over his success during
the cross-examination, he will not quickly put the witness
on his guard to avoid all future favorable disclosures.

David Graham, a prudent and successful cross-exam-
iner, once said, perhaps more in jest than anything else,
" A lawyer should never ask a witness on cross-examina-
tion a question unless in the first place he knew what
the answer would be, or in the second place he didn't
care." This is something on the principle of the lawyer
who claimed that the result of most trials depended upon
which side perpeutated the greatest blunders in cross-
examination. Certainly no lawyer should ask a critical
question unless he is sure of the answer.

Mr. Sergeant Ballantine, in his " Experiences," quotes
an instance in the trial of a prisoner on the charge of

THE MATTER OF CROSS-EXAMINATION

homicide, where a once famous English barrister had
been induced by the urgency ctf an attorney, although
against his own judgment, to ask sTqiie^tion on cross-
examination, the answer to which convicted his cKe^t
Upon receiving the answer, he turned to the attorney who
had advised him to ask it, and said, emphasizing every
word, "Go home; cut your throat; and when you meet
your client in hell, beg his pardon/'

It is well, sometimes, in a case where you believe that
the witness is reluctant to develop the whole truth, so to
put questions that the answers you know will be elicited
may come by way of a surprise and in the light of im-
probability to the jury. I remember a recent incident,
illustrative of this point, which occurred in a suit brought
to recover the insurance on a large warehouse full of
goods that had been burnt to the ground. The insur- ^^
ance companies had been unable to find any stock-book
which would show the amount of goods in stock at tl^e
time of the fire. One of the witnesses to the fire hap-
pened to be the plaintiffs bookkeeper, who on the direct
examination testified to all the details of the fire, but
nothing about the books. The cross-examination was
confined to these few pointed questions.

" I suppose you had an iron safe in your ofiice, in
which you kept your books of account ? " " Yes, sir." —
" Did that burn up ? " " Oh, no/' — " Were you present
when it was opened after the fire ? " " Yes, sir." — " Then
won't you be good enough to hand me the stock-book

THE ART OF CROSS-EXAMINATION

that we may show the jury exactly what stock you had
on hand at the time of the fire on which you claim loss ? "
(This was the point of the case and the jury were not
prepared for the answer which followed.) *' I haven't
it, sir," — "What, haven't the stock-book? You don't
mean you have lost it ? " " It wasn't in the safe, sir." —
** Wasn't that the proper place for it ? " " Yes, sin" —
" How was it that the book wasn't there ? " " It had
evidently been left out the night before the fire by mis-
take." Some of the jury at once drew the inference
that the all-important stock-book was being suppressed,
and refused to agree with their fellows against the insur-
ance companies.

The average mind is much wiser than many suppose.
Questions can be put to awitness under cross-examination,
in argumentative form, often with far greater effect upon
the minds of the jury than if the same line of reasoning
were reserved for the summing up. The juryman sees
the point for himself, as if it were his own discovery, and
clings to it all the more tenaciously. During the cross-
examination of Henry Ward Beecher, in the celebrated
Tilton-Beecher case, and after Mr. Beecher had denied
his alleged intimacy with Mr. Tilton's wife. Judge Ful-
lerton read a passage from one of Mr. Beecher's sermons
to the effect that if a person commits a great sin, the
exposure of which would cause misery to others, such a
person would not be justified in confessing it, merely
to relieve his own conscience. FuUerton then looked

THE MATTER OF CROSS-EXAMINATION

straight into Mr. Beecher's eyes and said, " Do you still
consider that sound doctrine?" Mr. Beecher replied,
" I do." The inference a jurjnuan might draw from this
question and answer would constitute a subtle argument
upon that branch of the case.

The entire effect of the testimony of an adverse wit-
ness can sometimes be destroyed by a pleasant little
passage-at-arms in which he is finally held up to ridicule
before the jury, and all that he has previously said against
you disappears in the laugh that accompanies him from
the witness box. In a recent Metropolitan Street Rail-
way case a witness who had been badgered rather per-
sistently on cross-examination, finally straightened himself
up in the witness chair and said pertly, " I have not come
here asking you to play with me. Do you take me for
Anna Held ? " ^ " I was not thinking of Anna Held," re-
plied the counsel quietly ; " supposing you try Ananias I "
The witness was enraged, the jury laughed, and the
lawyer, who had really made nothing out of the witness
up to this time, sat down.

These little triumphs are, however, by no means always
one-sided. Often, if the coun©tl gives him an opening, a
clever witness will counter on him in a most humiliating
fashion, certain to meet with the hearty approval of jury
and audience. At the Worster Assizes, in England, a
case was being tried which involved the soundness of a

^ This occurrence was at the time when the actress Anna Held was singing
her popular stage song, << WonH you come and play with me.^^

THE ART OF CROSS-EXAMINATION

horse, and a clerg)niian had been called as a witness who
succeeded only in giving a rather confused account of
the transaction. A blustering counsel on the other side,
after many attempts to get at the facts upon cross-
examination, blurted out, " Pray, sir, do you know the
difference between a horse and a cow ? " "I acknowledge
my ignorance," replied the clergyman ; " I hardly do know
the difference between a horse and a cow, or between a
bull and a bully — only a bull, I am told, has horns, and
a bully (bowing respectfully to the counsel), luckily for
me, has none."* Reference is made in a subsequent

chapter to the cross-examination of Dr. in the

Carlyle Harris case, where is related at length a striking
example of success in this method of examination.

It may not be uninteresting to record in this connec-
tion one or two cases illustrative of matter that is valu-
able in cross-examination in personal damage suits
where the sole object of counsel is to reduce the amount
of the jury's verdict, and to puncture the pitiful tale of
suffering told by the plaintiff in such cases.

A New York commission merchant, named Metts,
sixty-six years of age, was riding in a Columbus Avenue
open car. As the car neared the curve at Fifty-third
Street and Seventh Avenue, and while he was in the act
of closing an open window in the front of the car at the
request of an old lady passenger, the car gave a sudden,
violent lurch, and he was thrown into the street, receiv-

^ ^ Curiosities of Law and Lawyers.^^

THE MATTER OF CROSS-EXAMINATION

ing injuries from which, at the time of the trial, he had
suffered for three years.

Counsel for the plaintiff went into his client's suffer-
ings in great detail. Plaintiff had had concussion of the
brain, loss of memory, bladder difficulties, a broken leg,
nervous prostration, constant pain in his back. And the
attempt to alleviate the pain attendant upon all these
difficulties was gone into with great detail. To cap all,
the attending physician had testified that the reasonable
value of his professional services was the modest sum of
$2500.

Counsel for the railroad, before cross-examining, had
made a critical examination of the doctor's face and bear-
ing in the witness chair, and had concluded that, if pleas-
antly handled, he could be made to testify pretty nearly
to the truth, whatever it might be. He concluded to
spar for an opening, and it came within the first half-
dozen questions: —

Counsel. " What medical name, doctor, would you give
to the plaintiff's present ailment ? "

Doctor. " He has what is known as 'traumatic microsis.'"

Counsel. " Microsis, doctor ? That means, does it not,
the habit, or disease as you may call it, of making much
of ailments that an ordinary healthy man would pass by
as of no account ? "

Doctor. " That is right, sir."

Counsel {%m\[m^. "I hope you haven't got this dis-
ease, doctor, have you ? "

D 49

THE ART OF CROSS-EXAMINATION

Doctor. " Not that I am aware of, sir."

Counsel "Then we ought to be able to get a very
fair statement from you of this man's troubles, ought we
not?"

Doctor. " I hope so, sir."

The opening had been found; witness was already
flattered into agreeing with all suggestions, and warned
against exaggeration.

Counsel. "Let us take up the bladder trouble first.
Do not practically all men who have reached the age of
sixty-six have troubles of one kind or another that result
in more or less irritation of the bladder ? " '

Doctor. " Yes, that is very common with old men."

Counsel " You said Mr. Metts was deaf in one ear.
I noticed that he sfeemed to hear the questions asked him
in court particularly well ; did you notice it ? "

Doctor. " I did."

Counsel " At the age of sixty-six are not the majority
of men gradually failing in their hearing ? "

Doctor. " Yes, sir, frequently."

Counsel " Frankly, doctor, don't you think this man
hears remarkably well for his age, leaving out the deaf
ear altogether?"

Doctor. " I think he does."

Counsel (keeping the ball rolling). " I don't think you
have even the first symptoms of this * traumatic microsis,'
doctor."

Doctor (pleased). " I haven't got it at all."

THE MATTER OF CROSS-EXAMINATION

Counsel. " You said Mr. Metts had had concussion of
the brain. Has not every boy who has fallen over back-
ward, when skating on the ice, and struck his head, also
had what you physicians would call * concussion of the
brain 7"

Doctor. "Yes, sir."

Counsel. " But I understood you to say that this
plaintiff had had, in addition, hsemorrhages of the brain.
Do you mean to tell us that he could have had haemor-
rhages of the brain and be alive to-day ? '*

Doctor. " They were microscopic haemorrhages."

Counsel. " That is to say, one would have to take a
microscope to find them } "

Doctor. " That is right."

Counsel. "You do not mean us to understand, doc-
tor, that you have not cured him of these microscopic
haemorrhages } "

Doctor. " I have cured him ; that is right."

Counsel "You certainly were competent to set his
broken leg or you wouldn't have attempted it ; did you
get a good union ? "

Doctor. "Yes, he has got a good, strong, healthy

leg."

Counsel having elicited, by the " smiling method," all
the required admissions, suddenly changed his whole
bearing toward the witness, and continued pointedly : —

Counsel "And you said that $2500 would be a fair
and reasonable charge for your services. It is three

THE ART OF CROSS-EXAMINATION

years since Mr. Metts was injured. Have you sent him
no bill?"

Doctor. " Yes, sir, I have."

Counsel. "Let me see it. (Turning to plaintiff's
counsel.) Will either of you let me have the bill?"

Doctor. " I haven't it, sir."

Counsel (astonished). " What was the amount of it ? "

Doctor. "$iocx)."

Counsel (savagely). " Why do you charge the railroad
company two and a half times as much as you charge
the patient himself ? "

Z?^^/^7r (embarrassed at this sudden change on part
of counsel). "You asked me what my services were
worth."

Counsel " Didn't you charge your patient the full
worth of your services ? "

Doctor (no answer).

Counsel (quickly). " How much have you been paid
on your bill — on your oath ? "

Doctor. " He paid me $ioo at one time, that is, two
years ago ; and at two different times since he has paid
me $30."

Counsel "And he is a rich commission merchant
down town I " (And with something between a sneer
and a laugh counsel sat down.)

An amusing incident, leading to the exposure of a
manifest fraud, occurred recently in another of the many
damage suits brought against the Metropolitan Street

THE MATTER OF CROSS-EXAMINATION

Railway and growing out of a collision between two of
the company's electric cars.

The plaintiff, a laboring man, had been thrown to the
street pavement from the platform of the car by the
force of the collision, and had dislocated his shoulder.
He had testified in his own behalf that he had been
permanently injured in so far as he had not been able
to follow his usual employment for the reason that he
could not raise his arm above a point parallel with his
shoulder. Upon cross-examination the attorney for the
railroad asked the witness a few sympathetic questions
about his sufferings, and upon getting on a friendly
basis with him asked him " to be good enough to show
the jury the extreme limit to which he could raise his
arm since the accident." The plaintiff slowly and with
considerable difficulty raised his arm to the parallel of
his shoulder. "Now, using the same arm, show the
jury how high you could get it up before the accident,"*
quietly continued the attorney ; whereupon the witness
extended his arm to its full height above his head, amid
peals of laughter from the court and jury.

In a case of murder, to which the defence of insanity
was set up, a medical witness called on behalf of the
accused swore that in his opinion the accused, at the
time he killed the deceased, was affected with a homi-
cidal mania, and urged to the act by an irresistible im-
pulse. The judge, not satisfied with this, first put the
witness some questions on other subjects, and then

THE ART OF CROSS-EXAMINATION

asked, " Do you think the accused would have acted as
he did if a policeman had been present ? " to which the
witness at once answered in the negative. Thereupon
the judge remarked, " Your definition of an irresistible
impulse must then be an impulse irresistible at all times
except when a policeman is present."

CHAPTER IV

CROSS-EXAMINATION OF THE PERJURED WITNESS

CHAPTER IV

CROSS-EXAMINATION OF THE PERJURED WITNESS

In the preceding chapters it was attempted to offer a
few suggestions, gathered from experience, for the proper
handling of an honest witness who, through ignorance or
partisanship, and more or less unintentionally, had testi-
fied to a mistaken state of facts injurious to our side of
the litigation. In the present chapter it is proposed to
discuss the far more difficult task of exposing, by the
arts of cross-examination, the intentional Fraud, the per-
jured witness. Here it is that the greatest ingenuity of
the trial lawyer is called into play ; here rules help but
little as compared with years of actual experience. What
can be conceived more difficult in advocacy than the
task of proving a witness, whom you may neither have
seen nor heard of before he gives his testimony against
you, to be a wilful perjurer, as it were out of his own
mouth ?

It seldom happens that a witness's entire testimony is
false from beginning to end. Perhaps the greater part
of it is true, and only the crucial part — the point, how-
ever, on which the whole case may turn — is wilfully

THE ART OF CROSS-EXAMINATION

false. If, at the end of his direct testimony, we conclude
that the witness we have to cross-examine — to continue
the imaginary trial we were conducting in the previous
chapter — comes under this class, what means are we to
employ to expose him to the jury ?

Let us first be certain we are right in our estimate
of him — that he intends perjyry. Embarrassment is
one of the emblems of perjury, but by no means always
so. The novelty and difficulty of the situation — being
called upon to testify before a room full of people, with
lawyers on* all sides ready to ridicule or abuse — often
occasions embarrassment in witnesses of the highest
integrity. Then again some people are constitutionally
nervous and could be nothing else when testifying in
open court. Let us be sure our witness is not of this
type before we subject him to the particular form of
torture we have in store for the perjurer.

Witnesses of a low grade of intelligence, when they
testify falsely, usually display it in various w2Lys : in the
voice, in a certain vacant expression of the eyes, in a
nervous twisting about in the witness chair, in an ap-
parent effort to recall to mind the exact wording of their
story, and especially in the use of language not suited
to their station in life. On the other hand, there is
something about the manner of an honest but ignorant
witness that makes it at once manifest to an dxperienced
lawyer that he is narrating only the things that he has
actually seen and heard. The expression of the face

CROSS-EXAMINATION OF PERJURED WITNESS

changes with the narrative as he recalls the scene to
his mind; he looks the examiner full in the face; his
eye brightens as he recalls to mind the various incidents ;
he uses gestures natural to a man in his station of life,
and suits them to the part of the story he is narrating,
and he tells his tale in his own accustomed language.
If, however, the manner of the witness and the wording
of his testimony bear all the earmarks of fabrication, it
is often useful, as your first question, to ask him to
repeat his story. Usually he will repeat it in almost
identically the same words as before, showing he has
learned it by heart. Of course it is possible, though not
probable, that he has done this and still is telling the
truth. Try him by taking him to the middle of his
story, and from there jump him quickly to the beginning
and then to the end of it. If he is speaking by rote
rather than from recollection, he will be sure to succumb
to this method. He has no facts with which to associate
the wording of his story; he can only call it to mind
as a whole, and not in detachments. Draw his attention
to other facts entirely disassociated with the main story
as told by himself. He will be entirely unprepared for
these new inquiries, and will draw upon his imagination
for answers. Distract his thoughts again to some new
part of his main story and then suddenly, when his mind
is upon another subject, return to those considerations
to which you had first called his attention, and ask him
the same questions a second time. He will again fall

THE ART OF CROSS-EXAMINATION

back upon his imagination and very likely will give a
different answer from the first — and you have him in
the net. He cannot invent answers as fast as you can
invent questions, and at the same time remember his
previous inventions correctly ; he will not keep his an-
swers all consistent with one another. He will soon
become confused and, from that time on, will be at your
mercy. Let him go as soon as you have made it
apparent that he is not mistaken, but lying.

An amusing account is given in the Green Bag for
November, 1891, of one of Jeremiah Mason's cross-exami-
nations of such a witness. " The witness had previously
testified to having heard Mason's client make a certain
statement, and it was upon the evidence of that state-
ment that the adversary's case was based. Mr. Mason
led the witness round to his statement, and again it was
repeated verbatim. Then, without warning, he walked
to the stand, and pointing straight at the witness said,
in his high, impassioned voice, * Let's see that paper
you've got in your waistcoat pocket 1' Taken com-
pletely by surprise, the witness mechanically drew a paper
from the pocket indicated, and handed it to Mr. Mason.
The lawyer slowly read the exact words of the witness
in regard to the statement, and called attention to the
fact that they were in the handwriting of the lawyer on
the other side.

" * Mr. Mason, how under the sun did you know that
paper was there ? ' asked a brother lawyer. * Well,'

CROSS-EXAMINATION OF PERJURED WITNESS

replied Mr. Mason, * I thought he gave that part of his
testimony just as if he'd heard it, and I noticed every
time he repeated it he put his hand to his waistcoat
pocket, and then let it fall again when he got through.' ".

Daniel Webster considered Mason the greatest lawyer
that ever practised at the New England Bar. He said
of him, " I would rather, after my own experience, meet
all the lawyers I have ever known combined in a case,
than to meet him alone and single-handed." Mason was
always reputed to have possessed to a marked degree
" the instinct for the weak point " in the witness he was
cross-examining.

If perjured testimony in our courts were confined to
the ignorant classes, the work of cross-examining them
would be a comparatively simple matter, but unfortunately
for the cause of truth and justice this is far from the
case. Perjury is decidedly on the increase, and at the
present time scarcely a trial is conducted in which it
does not appear in a more or less flagrant form. Noth-
ing in the trial of a cause is so difficult as to expose the
perjury of a witness whose intelligence enables him to
hide his lack of scruple. There are various methods of
attempting it, but no uniform rule can be laid down as to
the proper manner to be displayed toward such a witness.
It all depends upon the individual character you have to
unmask. In a large majority of cases the chance of
success will be greatly increased by not allowing the wit-
ness to see that you suspect him, before you have led him

THE ART OF CROSS-EXAMINATION

to commit himself as to various matters with which you
have reason to believe you can confront him later on.

Two famous cross-examiners at the Irish Bar were
Sergeant Sullivan, afterwards Master of the Rolls in
Ireland, and Sergeant Armstrong. Barry O'Brien, in
his "Life of Lord Russell," describes their methods.
"Sullivan," he says, "approached the witness quite in
a friendly way, seemed to be an impartial inquirer seek-
ing information, looked surprised at what the witness
said, appeared even grateful for the additional light
thrown on the case. * Ah, indeed ! Well, as you have
said so much, perhaps you can help us a little further.
Well, really, my Lord, this is a very intelligent man.'
So playing the witness with caution and skill, drawing
him stealthily on, keeping him completely in the dark
about the real point of attack, the 'little sergeant'
waited until the man was in the meshes, and then flew
at him and shook him as a terrier would a rat.

"The *big Sergeant' (Armstrong) had more humor
and more power, but less dexterity and resource. His
great weapon was ridicule. He laughed at the witness
and made everybody else laugh. The witness got con-
fused and lost his temper, and then Armstrong pounded
him like a champion in the ring."

In some cases it is wise to confine yourself to one or
two salient points on which you feel confident you can
get the witness to contradict himself out of his own
mouth. It is seldom useful to press him on matters

CROSS-EXAMINATION OF PERJURED WITNESS

with which he is familiar. It is the safer course to
question him on circumstances connected with his story,
but to which he has not already testified and for which
he would not be likely to prepare himself. 4--

A simple but instructive example of cross-examination,
conducted along these lines, is quoted from Judge J. W.
Donovan's " Tact in Court." It is doubly interesting in
that it occurred in Abraham Lincoln's first defence at a
murder trial.

" Grayson was charged with shooting Lockwood at a
camp-meeting, on the evening of August 9, 18 — , and
with running away from the scene of the killing, which
was witnessed by Sovine. The proof was so strong that,
even with an excellent previous character, Grayson came
very near being lynched on two occasions soon after his
indictment for murder.

"The mother of the accused, after failing to secure
older counsel, finally engaged young Abraham Lincoln,
as he was then called, and the trial came on to an early
hearing. No objection was made to the jury, and no
cross-examination of witnesses, save the last and only
important one, who swore that he knew the parties, saw
the shot fired by Grayson, saw him run away, and picked
up the deceased, who died instantly.

" The evidence of guilt and identity was morally cer-
tain. The attendance was large, the interest intense.
Grayson's mother began to wonder why * Abraham re-
mained silent so long and why he didn't do something ! '

THE ART OF CROSS-EXAMINATION

The people finally rested. The tall lawyer (Lincoln)
stood up and eyed the strong witness in silence, without
books or notes, and slowly began his defence by these
questions :

" Lincoln. ' And you were with Lockwood just before
and saw the shooting ? '

" Witness. * Yes.'

" Lincoln. * And you stood very near to them ? '

" Witness. * No, about twenty feet away.'

" Lincoln. * May it not have been ten feet ? '

" Witness. * No, it was twenty feet or more!

" Lincoln. * In the open field ? '

" Witness. * No, in the timber.'

" Lincoln. * What kind of timber? '

" Witness. ' Beech timber.'

" Lincoln. * Leaves on it are rather thick in August ? '

" Witness. ' Rather.'

" Lincoln. * And you think this pistol was the one used?'

« Witness. ' It looks like it.'

" Lincoln. ' You could see defendant shoot — see how
the barrel hung, and all about it ? '

« Witness. ' Yes.'

" Lincoln. * How near was this to the meeting place ? '

" Witness. ' Three-quarters of a mile away.'

" Lincoln. * Where were the lights ? '

" Witness. * Up by the minister's stand.'

" Lincoln. * Three-quarters of a mile away ? '

" Witness. * Yes, — I answered ye twisted

CROSS-EXAMINATION OF PERJURED WITNESS

^^ Lincoln. 'Did you not see a candle there, with
Lockwood or Grayson ? '

" Witness. * No 1 what would we want a candle for ? '

" Lincoln. * How, then, did you see the shooting ? '

" Witness. * By moonlight I ' (defiantly).

^"^ Lincoln. 'You saw this shooting at ten at night —
in beech timber, three-quarters of a mile from the lights
— saw the pistol barrel — saw the man fire — saw it
twenty feet away — saw it all by moonlight ? Saw it
nearly a mile from the camp lights ? '

" Witness. * Yes, I told you so before/

"The interest was now so intense that men leaned
forward to catch the smallest syllable. Then the lawyer
drew out a blue-covered almanac from his side coat
pocket — opened it slowly — offered it in evidence —
showed it to the jury and the court — read from a page
with careful deliberation that the moon on that night
was unseen and only arose at one the next morning.

" Following this climax Mr. Lincoln moved the arrest
of the perjured witness as the real murderer, saying:
* Nothing but a motive to clear himself could have in-
duced him to swear away so falsely the life of one who
never did him harm ! ' With such determined emphasis
did Lincoln present his showing that the court ordered
Sovine arrested, and under the strain of excitement he
broke down and confessed to being the one who fired
the fatal shot himself, but denied it was intentional."

A difficult but extremely effective method of exposing
E 65

THE ART OF CROSS-EXAMINATION

a certain kind of perjurer is to lead him gradually to a
point in his story, where — in his answer to the final
question " Which ? " — he will have to choose either one
or the other of the only two explanations left to him,
either of which would degrade if not entirely discredit
him in the eyes of the jury.

The writer once heard the Hon. Joseph H. Choate
make very telling use of this method of examination.
A stock-broker was being sued by a married woman for
the return of certain bonds and securities in the broker's
possession, which she alleged belonged to her. Her
husband took the witness-stand and swore that he had
deposited the securities with the stock-broker as collat-
eral against his market speculations, but that they did
not belong to him, and that he was acting for himself
and not as agent for his wife, and had taken her securi-
ties unknown to her.

It was the contention of Mr. Choate that, even if the
bonds belonged to the wife, she had either consented to
her husband's use of the bonds, or else was a partner
with him in the transaction. Both of these contentions
were denied under oath by the husband.

Mr. Choate. " When you ventured into the realm of
speculations in Wall Street I presume you contemplated
the possibility of the market going against you, did you
not?"

Witness. "Well, no, Mr. Choate, I went into Wall
Street to make money, not to lose it."

CROSS-EXAMINATION OF PERJURED WITNESS

Mr. Choate. " Quite so, sir ; but you will admit, will
you not, that sometimes the stock market goes contrary
to expectations ? "

Witness. " Oh, yes, I suppose it does."

Mr. Choate. " You say the bonds were not your own
property, but your wife's ? "

Witness. " Yes, sir."

Mr. Choate. " And you say that she did not lend them
to you for purposes of speculation, or even know you had
possession of them ? "

Witness. " Yes, sir."

Mr. Choate. " You even admit that when you depos-
ited the bonds with your broker as collateral against
your stock speculations, you did not acquaint him with
the fact that they were not your own property ? "

Witness. "I did not mention whose property they
were, sir."

Mr. Choate (in his inimitable style). " Well, sir, in the
event of the market going against you and your collat-
eral being sold to meet your losses, whom did you intend
to cheaty your broker or your wife / "

The witness could give no satisfactory answer, and
for once a New York jury was found who were willing
to give a verdict against the customer and in favor of a
Wall Street broker.

In the great majority of cases, however, the most skil-
ful efforts of the cross-examiner will fail to lead the
witness into such " traps " as these. If you have accom-

THE ART OF CROSS-EXAMINATION

plished one such coup^ be content with the point you
have made ; do not try to make another with the same
witness ; sit down and let the witness leave the stand.

But let us suppose you are examining a witness with
whom no such climax is possible. Here you will require
infinite patience and industry. Try to show that his
story is inconsistent with itself, or with other known
facts in the case, or with the ordinary experience of man-
kind. There is a wonderful power in persistence. If
you fail in one quarter, abandon it and try something
else. There is surely a weak spot somewhere, if the
story is perjured. Frame your questions skilfully. Ask
them as if you wanted a certain answer, when in reality
you desire just the opposite one. " Hold your own tem-
per while you lead the witness to lose his " is a Golden
Rule on all such occasions. If you allow the witness a
chance to give his reasons or explanations, you may be
sure they will be damaging to you, not to him. If you
can succeed in tiring out the witness or driving him to
the point of suUenness, you have produced the effect of
lying.

But it is not intended to advocate the practice of
lengthy cross-examinations because the effect of them,
unless the witness is broken down, is to lead the jury to
exaggerate the importance of evidence given by a witness
who requires so much cross-examination in the attempt
to upset him. " During the Tichborne trial for perjury,
a remarkable man named Luie was called to testify. He

CROSS-EXAMINATION OF PERJURED WITNESS

was a shrewd witness and told his tale with wonderful
precision and apparent accuracy. That it was untrue
there could hardly be a question, but that it could be
proved untrue was extremely doubtful and an almost
hopeless task. It was an improbable story, but still was
not an absolutely impossible one. If true, however, the
claimant was the veritable Roger Tichborne, or at least
the probabilities would be so immensely in favor of that
supposition that no jury would agree in finding that he
was Arthur Orton. His manner of giving his evidence
was perfect. After the trial one of the jurors was asked
what he thought of Luie's evidence, and if he ever
attached any importance to his story. He replied that
at the close of the evidence-in-chief he thought it so
improbable that no credence could be given to it. But
after Mr. Hawkins had been at him for a day and could
not shake him, I began to think, if such a cross-examiner
as that cannot touch him, there must be something in
what he says, and I began to waver. I could not under-
stand how it was that, if it was all lies, it did not break
down under such able counsel." ^

The presiding judge, whose slightest word is weightier
than the eloquence of counsel, will often interrupt an
aimless and prolonged cross-examination with an abrupt,

*' Mr. , I think we are wasting time," or " I shall

not allow you to pursue that subject further," or " I can-
not see the object of this examination." This is a set-

1 ** Hints on Advocacy," Harris.

THE ART OF CROSS-EXAMINATION

back from which only the most experienced advocate can
readily recover. Before the judge spoke, the jury, per-
haps, were already a little tired and inattentive and
anxious to finish the case ; they were just in the mood to
agree with the remark of his Honor, and the "/atmosphere
of the case," as I have always termed it, was fast becom-
ing unfavorable to the delinquent attorney's client. How
important a part in the final outcome of every trial this
Mmosphere of the case usually plays! Many jurymen
lose sight of the parties to the litigation — our clients —
in their absorption over the conflict of wits going on
between their respective lawyers.

It is in criminal prosecutions where local politics are
involved, that the jury system is perhaps put to its sever-
est test The ordinary juryman is so apt to be blinded
by his political prejudices that where the guilt or inno-
cence of the prisoner at the Bar turns upon the question
as to whether the prisoner did or did not perform some
act, involving a supposed advantage to his political party,
the jury is apt to be divided upon political lines.

About ten years ago, when a wave of political reform
was sweeping over New York City, the Good Govern-
ment Clubs caused the arrest of about fifty inspectors
of election for violations of the election laws. These
men were all brought up for trial in the Supreme Court
criminal term, before Mr. Justice Barrett. The prison-
ers were to be defended by various leading trial lawyers,
and everything depended upon the result of the first few

CROSS-EXAMINATION OF PERJURED WITNESS

cases tried. If these trials resulted in acquittals, it was
anticipated that there would be acquittals all along the
line; if the first offenders put on trial were convicted
and sentenced to severe terms in prison, the great
majority of the others would plead guilty, and few would
escape.

At that time the county of New York was divided,
for purposes of voting, into 1067 election districts,
and on an average perhaps 250 votes were cast in
each district. An inspector of one of the election
districts was the first man called for trial. The charge
against him was the failure to record correctly the vote
cast in his district for the Republican candidate for
alderman. In this particular election district there
had been 167 ballots cast, and it was the duty of the
inspectors to count them and return the result of their
count to police headquarters.

At the trial twelve respectable citizens took the wit-
ness chair, one after another, and affirmed that they lived
in the prisoner's election district, and had all cast their
ballots on election day for the Republican candidate. The
official count for that district, signed by the prisoner,
was then put in evidence, which read: Democratic
votes, 167; Republican, o. There were a number of
witnesses called by the defence who were Democrats.
The case began to take on a political aspect, which was
likely to result in a divided jury and no conviction, since
it had been shown that the prisoner had a most excellent

THE ART OF CROSS-EXAMINATION

reputation and had never been suspected of wrong-doing
before. Finally the prisoner himself was sworn in his
own behalf.

It was the attempt of the cross-examiner to leave the
witness in such a position before the jury that no matter
what their politics might be, they could not avoid con-
victing him. There were but five questions asked.

Counsel. " You have told us, sir, that you have a wife
and seven children depending upon you for support. I
presume your desire is not to be obliged to leave them ;
is it not?"

Prisoner. " Most assuredly, sir."

Counsel "Apart from that consideration I presume
you have no particular desire to spend a term of years
in Sing Sing prison?"

Prisoner. " Certainly not, sir."

Counsel. "Well, you have heard twelve respectable
citizens take the witness-stand and swear they voted
the Republican ticket in your district, have you not ? "

Prisoner. " Yes, sir."

Counsel (pointing to the jury). " And you see these
twelve respectable gentlemen sitting here ready to pass
judgment upon the question of your liberty, do you
not?"

Prisoner. " I do, sir."

Counsel (impressively, but quietly). " Well, now, Mr.

, you will please explain to these twelve gentlemen

(pointing to jury) how it was that the ballots cast by the

CROSS-EXAMINATION OF PERJURED WITNESS

other twelve gentlemen were not counted by you, and
then you can take your hat and walk right out of the
court room a free man."

The witness hesitated, cast down his eyes, but made
no answer — and counsel sat down.

Of course a conviction followed. The prisoner was
sentenced to five years in state prison. During the
following few days nearly thirty defendants, indicted for
similar offences, pleaded guilty, and the entire work of
the court was completed within a few weeks. There
was not a single acquittal or disagreement

Occasionally, when sufficient knowledge of facts about
the witness or about the details of his direct testimony
can be correctly anticipated, a trap may be set into
which even a clever witness, as in the illustration that
follows, will be likely to fall.

During the lifetime of Dr. A. E. Ranney there were
few physicians in this country who were so frequently
seen on the witness-stand, especially in damage suits.
So expert a witness had he become that Chief Justice
Van Brunt many years ago is said to have remarked,
" Any lawyer who attempts to cross-examine Dr. Ran-
ney is a fool." A case occurred a few years before Dr.
Ranney died, however, where a failure to cross-examine
would have been tantamount to a confession of judg-
ment, and the trial lawyer having the case in charge,
though fully aware of the dangers, was left no alterna-
tive, and as so often happens where " fools rush in,"

THE ART OF CROSS-EXAMINATION

made one of those lucky " bull's eyes " that is perhaps
worth recording.

It was a damage case brought against the city by a
lady who, on her way from church one spring morning,
had tripped over an obscure encumbrance in the street,
and had, in consequence, been practically bedridden
for the three years leading up to the day of trial. She
was brought into the court room in a chair and was
placed in front of the jury, a pallid, pitiable object, sur-
rounded by her women friends, who acted upon this occa-
sion as nurses, constantly bathing her hands and face
with ill-smelling ointments, and administering restora-
^tives, with marked effect upon the jury.

Her counsel, Ex-chief Justice Noah Davis, claimed
that her spine had been permanently injured, and asked
the jury for $50,000 damages.

It appeared that Dr. Ranney had been in constant
attendance upon the patient ever since the day of her
accident. He testified that he had visited her some
three hundred times and had examined her minutely at
least two hundred times in order to make up his mind
as to the absolutely correct diagnosis of her case, which
he was now thoroughly satisfied was one of genuine
disease of the spinal marrow itself. Judge Davis asked
him a few preliminary questions, and then gave the
doctor his head and let him " turn to the jury and tell
them all about it." Dr. Ranney spoke uninterruptedly
for nearly three-quarters of an hour. He described in

CROSS-EXAMINATION OF PERJURED WITNESS

detail the sufferings of his patient since she had been
under his care ; his efforts to relieve her pain ; the hope-
less nature of her malady. He then proceeded in a
most impressive way to picture to the jury the gradual
and relentless progress of the disease as it assumed the
form of creeping paralysis, involving the destruction of
one organ after another until death became a blessed
relief. At the close of this recital, without a question
more, Judge Davis said in a calm but triumphant tone,
" Do you wish to cross-examine ? "

Now the point in dispute — there was no defence on
the merits — was the nature of the patient's malady.
The city's medical witnesses were unanimous that the
lady had not, and could not have, contracted spinal dis-
ease from the slight injury she had received. They
styled her complaint as "hysterical," existing in the
patient's mind alone, and not indicating nor involving
a single diseased organ; but the jury evidently all be-
lieved Dr. Ranney, and were anxious to render a verdict
on his testimony. He must be cross-examined. Abso-
lute failure could be no worse than silence, though it
was evident that, along expected lines, questions relat-
ing to his direct evidence would be worse than useless.
Counsel was well aware of the doctor's reputed fertility
of resource, and quickly decided upon his tactics.

The cross-examiner first directed his questions toward
developing before the jury the fact that the witness had
been the medical expert for the New York, New Haven,

THE ART OF CROSS-EXAMINATION

and Hartford R. R. thirty-five years, for the New York
Central R. R. forty years, for the New York and Har-
lem River R. R. twenty years, for the Erie R. R. fifteen
years, and so on until the doctor was forced to admit
that he was so much in court as a witness in defence of
these various railroads, and was so occupied with their
affairs that he had but comparatively little time to devote
to his reading and private practice.

Counsel (perfectly quietly). " Are you able to give us,
doctor, the name of any medical authority that agrees
with you when you say that the particular group of
S)rmptoms existing in this case points to one disease and
one only ? "

Doctor. ** Oh, yes. Dr. Erskine agrees with me."
Counsel " Who is Dr. Erskine, if you please ? "

Doctor (with a patronizing smile). " Well, Mr. ,

Erskine was probably one of the most famous surgeons
that England has ever produced." (There was a titter
in the audience at the expense of counsel.)
Counsel " What book has he written ? "
Doctor (still smiling). " He has written a book called
* Erskine on the Spine,' which is altogether the best
known work on the subject." (The titter among the
audience grew louder.)

Counsel. " When was this book published ? "
Doctor. " About ten years ago."
Counsel " Well, how is it that a man whose time is
so much occupied as you have told us yours is, has

CROSS-EXAMINATION OF PERJURED WITNESS

leisure enough to look up medical authorities to see if
they agree with him ? "

Doctor (fairiy beaming on counsel). " Well, Mr. ,

to tell you the truth, I have often heard of you, and I
half suspected you would ask me some such foolish ques-
tion; so this morning after my breakfast, and before
starting for court, I took down from my library my copy
of Erskine's book, and found that he agreed entirely with
my diagnosis in this case." (Loud laughter at expense
of counsel, in which the jury joined.)

Counsel (reaching under the counsel table and taking
up his own copy of " Erskine on the Spine," and walking
deliberately up to the witness). "Won't you be good
enough to point out to me where Erskine adopts your
view of this case ? "

Doctor (embarrassed). " Oh, I can't do it now; it is a
very thick book."

Counsel (still holding out the book to the witness).
" But you forget, doctor, that thinking I might ask you
some such foolish question, you examined your volume of
Erskine this very morning after breakfast and before
coming to court."

Doctor (becoming more embarrassed and still refusing
to take the book). " I have not time to do it now."

Counsel " Time ! why there is all the time in the
world."

Doctor, (no answer).

Counsel and witness eye each other closely.

THE ART OF CROSS-EXAMINATION

Counsel (sitting down, still eying witness). " I am sure
the court will allow me to suspend my examination until
you shall have had time to turn to the place you read
this morning in that book, and can reread it now aloud
to the jury."

Doctor (no answer).

The court room was in deathly silence for fully three
minutes. The witness wouldtCt say anything, counsel
for plaintiff didnt dare to say anything, and counsel for
the city didn't want to say anything; he saw that he
had caught the witness in a manifest falsehood, and that
the doctor's whole testimony was discredited with the
jury unless he could open to the paragraph referred to
which counsel well knew did not exist in the whole work
of Erskine.

At the expiration of a few minutes, Mr. Justice
Barrett, who was presiding at the trial, turned quietly to
the witness and asked him if he desired to answer the
question, and upon his replying that he did not intend to
answer it any further than he had already done, he was
excused from the witness-stand amid almost breathless
silence in the court room. As he passed from the wit-
ness chair to his seat, he stooped and whispered into the

ear of counsel, " You are the est most impertinent

man I have ever met"

After a ten days' trial the jury were unable to forget
the collapse of the plaintiff's principal witness, and failed
to agree upon a verdict.

CHAPTER V

CROSS-EXAMINATION OF EXPERTS

CHAPTER V

CROSS-EXAMINATION OF EXPERTS

In these days when it is impossible to know everything,
but it becomes necessary for success in any avocation to
know something of everything and everything of some-
thing, the expert is more and more called upon as a wit-
ness both in civil and criminal cases. In these times
of specialists, their services are often needed to aid the
jury in their investigations of questions of fact relating to
subjects with which the ordinary man is not acquainted.

The cross-examination of various experts, whether
medical, handwriting, real estate, or other specialists, is
a subject of growing importance, but it is intended in
this chapter merely to make some suggestions, and to
give a few illustrations of certain methods that may be
adopted with more or less success in the examination of
this class of witnesses.

It has become a matter of common observation that
not only can the honest opinions of different experts be
obtained upon opposite sides of the same question, but
also that dishonest opinions may be obtained upon dif-
ferent sides of the same question.
F 8i

THE ART OF CROSS-EXAMINATION

Attention is also called to the distinction between
mere matters of scientific fact and mere matters of opin-
ion. For example: certain medical experts may be
-called to establish certain medical facts which are not
mere matters of opinion. On such facts the experts
could not disagree ; but in the province of mere opinion
it is well known that the experts differ so much among
themselves that but little credit is given to mere expert
opinion as such.

As a general thing, it is unwise for the cross-examiner
to attempt to cope with a specialist in his own field of
inquiry. Lengthy cross-examinations along the lines of
the expert's theory are usually disastrous and should
rarely be attempted.

Many lawyers, for example, undertake to cope with a
medical or handwriting expert on his own ground, —
surgery, correct diagnosis, or the intricacies of penman-
ship. In some rare instances (more especially with
poorly educated physicians) this method of cross-ques-
tioning is productive of results. More frequently, how-
ever, it only affords an- opportunity for the doctor to
enlarge upon the testimony he has already given, and to
explain what might otherwise have been misunderstood
or even entirely overlooked by the jury. Experience has
led me to believe that a physician should rarely be cross-
examined on his own specialty, unless the importance of
the case has warranted so close a study by the counsel of
the particular subject under discussion as to justify the

CROSS-EXAMINATION OF EXPERTS

experiment; and then only when the lawyer's research
of the medical authorities, which he should have with
him in court, convinces him that he can expose the doc-
tor's erroneous conclusions, not only to himself, but to a
jury who will not readily comprehend the abstract theo-
ries of physiology upon which even the medical profes-
sion itself is divided.

On the other hand, some careful and judicious ques-
tions, seeking to bring out separate facts and separate
points from the knowledge and experience of the expert,
which will tend to support the theory of the attorney's
own side of the case, are usually productive of good
results. In other words, the art of the cross-examiner
should be directed to bring out such scientific facts from
the knowledge of the expert as will help his own case,
and thus tend to destroy the weight of the opinion of the
expert given against him.

Another suggestion which should always be borne in
mind is that no question should be put to an expert
which is in any way so broad as to give the expert an
c^portunity to expatiate upon his own views, and thus
afford him an opportunity in his answer to give his
reasons, in his own way, for his opinions, which counsel
calling him as an expert might not otherwise have fully
brought out in his examination.

It was in the trial of Dr. Buchanan on the charge of
murdering his wife, that a single, ill-advised question put
upon cross-examination to the physician who had attended

THE ART OF CROSS-EXAMINATION

Mrs. Buchanan upon her death-bed, and who had given it
as his opinion that her death was due to natural causes,
which enabled the jury, after twenty-four hours of dispute
among themselves, finally to agree against the prisoner
on a verdict of murder in the first degree, resulting in
Buchanan's execution.

The charge against Dr. Buchanan was that he had
poisoned his wife — a woman considerably older than
himself, and who had made a will in his favor — with
morphine and atrophine, each drug being used in such
proportion as to effectually obliterate the group of symp-
toms attending death when resulting from the use of either
drug alone.

At Buchanan's trial the district attorney found him-
self in the extremely awkward position of trying to per-
suade a jury to decide that Mrs. Buchanan's death was,
beyond all reasonable doubt, the result of an overdose of
morphine mixed with atrophine administered by her hus-
band, although a respectable physician, who had attended
her at her death-bed, had given it as his opinion that she
died from natural causes, and had himself made out a
death certificate in which he attributed her death to
apoplexy.

It was only fair to the prisoner that he should be given
the benefit of the testimony of this physician. The Dis-
trict Attorney, therefore, called the doctor to the witness-
stand and questioned him concerning the symptoms he
had observed during his treatment of Mrs. Buchanan just

CROSS-EXAMINATION OF EXPERTS

prior to her death, and developed the fact that the doctor
had made out a death certificate in which he had certified
that in his opinion apoplexy was the sole cause of death.
The doctor was then turned over to the lawyers for the
defence for cross-examination.

One of the prisoner's counsel, who had far more knowl-
edge of medicine than of the art of cross-examination, was
assigned the important duty of cross-examining this wit-
ness. After badgering the doctor for an hour ot so with
technical medical questions more or less remote from the
subject under discussion, and tending to show the erudi-
tion of the lawyer who was conducting the examination
rather than to throw light upon the inquiry uppermost in
the minds of the jury, the cross-examiner finally repro-
duced the death certificate and put it in evidence, and
calling the doctor's attention to the statement therein
made — that death was the result of apoplexy — ex-
claimed, while flourishing the paper in the air : —

" Now, doctor, you have told us what this lady's symp-
toms were, you have told us what you then believed was
the cause of her death ; I now ask you, has anything
transpired since Mrs. Buchanan's death which would
lead you to change your opinion as it is expressed in
this paper ? "

The doctor settled back in his chair and slowly re-
peated the question asked : " Has — anything — tran-
spired — since — Mrs. Buchanan's — death — which —
would — lead — me — to — change — my — opinion — as

THE ART OF CROSS-EXAMINATION

it — is — expressed — in — this — paper ? " The witness
turned to the judge and inquired if in answer to such
a question he would be allowed to speak of matters
that had come to his knowledge since he wrote the cer-
tificate. The judge replied : " The question is a broad
one. Counsel asks you if you know of any reason why
you should change your former opinion?"

The witness leaned forward to the stenographer and
requested him to read the question over again. This
was done. The attention of everybody in court was by
this time focussed upon the witness, intent upon his
answer. It seemed to appear to the jury as if this must
be the turning point of the case.

The doctor having heard the question read a second
time, paused for a moment, and then straightening him-
self in his chair, turned to the cross-examiner and said,
" I wish to ask you a question, Has the report of the
chemist telling of his discovery of atrophine and mor-
phine in the contents of this woman's stomach been
offered in evidence yet?" The court answered, "It
has not."

" One more question," said the doctor, " Has the report
of the pathologist yet been received in evidence ? " The
court replied, " No."

" Tken^^ said the doctor, rising in his chair, " I can
answer your question truthfully, that as yet in the ab-
sence of the pathological report and in the absence of
the chemical report I know of no legal evidence which

CROSS-EXAMINATION OF EXPERTS

would cause me to alter the opinion expressed in my
death certificate."

It is impossible to exaggerate the impression made
upon the court and jury by these answers. AH the
advantage that the prisoner might have derived from
the original death certificate was entirely swept away.

The trial lasted for fully two weeks after this episode.
When the jury retired to their consultation room at the
end of the trial, they found they were utterly unable to
agree upon a verdict They argued among themselves
for twenty-four hours without coming to any conclusion.
At the expiration of this time the jury returned to the
court room and asked to have the testimony of this doc-
tor reread to them by the stenographer. The stenog-
rapher, as he read from his notes, reproduced the entire
scene which had been enacted two weeks before. The
jury retired a second time and immediately agreed upon
their verdict of death.

The cross-examinations of the medical witnesses in the
Buchanan case conducted by this same "Medico-legal
Wonder " were the subject of very extended newspaper
praise at the time, one daily paper devoting the entire
front page of its Sunday edition to his portrait

How expert witnesses have been discredited with juries
in the past, should serve as practical guides for the future.
The whole effect of the testimony of an expert witness
may sometimes effectually be destroyed by putting the
witness to some unexpected and offhand test at the trial,

THE ART OF CROSS-EXAMINATION

as to his experience, his ability and discrimination as an
expert, so that in case of his failure to meet the test he
can be held up to ridicule before the jury, and thus the
laughter at his expense will cause the jury to forget any-
thing of weight that he has said against you.

I have always found this to be the most effective
method to cross-examine a certain type of professional
medical witnesses now so frequently seen in our courts.
A striking instance of the efficacy of this style of cross-
examination was experienced by the writer in a damage
suit against the city of New York, tried in the Supreme
Court sometime in 1887.

A very prominent physician, president of one of our
leading clubs at the time, but now dead, had advised a
woman who had been his housekeeper for thirty years,
and who had broken her ankle in consequence of step-
ping into an unprotected hole in the street pavement, to
bring suit against the city to recover {^40,000 damages.
There was very little defence to the principal cause of
action : the hole in the street was there, and the plaintiff
had stepped into it ; but her right to recover substantial
damages was vigorously contested.

Her principal, in fact her only medical witness was
her employer, the famous physician. The doctor testi-
fied to the plaintiff's sufiFerings, described the fracture of
her ankle, explained how he had himself set the broken
bones and attended the patient, but affirmed that all his
efforts were of no avail as he could bring about nothing

CROSS-EXAMINATION OF EXPEJITS

btit a tflost imperfect union of the bones, and that his
housekeeper, a most respectable and estimable lady,
would Tje lame for life. His manner on the witness-
stand was excee^ngly dignified and frank, and evidently
impressed the jury. A large verdict of fully 1^15,000
was certain to be the result unless this witness's hold
upon the jury could be broken on his cross-examination.
There was no reason known to counsel why this ankle,
should not have healed promptly, as such fractures usu-
ally do; but how to make the jury realize the fact was
the question. The intimate personal acquaintance be-
tween the cross-examiner and the witness was another
embarrassment.

The cross-examination began by showing that the
witness, although a graduate of Harvard, had not irti-
mediately entered a medical school, but on the contrary
had started in business in Wall Street, had later been
manager of several business enterprises, and had not
begun the study of medicine until he was forty years
old. The examination then continued in the most
amiable manner possible, each question being asked in
a tone almost of apology.

Counsel. " We all know, doctor, that you have a large
and lucrative family practice as a general practitioner;
but is it not a fact that in this great city, where accidents
are of such common occurrence, surgical cases are usu-
ally taken to the hospitals and cared for by experienced
surgeons ? "

THE ART OF CROSS-EXAMINATION

Doctor. " Yes, sir, that is so."

Counsel. " You do not even claim to be an experienced
surgeon ? "

Doctor. " Oh, no, sir. I have the experience of any
general practitioner."

CounseL " What would be the surgical name for the
particular form of fracture that this lady suffered ? "

Doctor. " What is known as a ' Potts fracture of the
ankle.'"

CounseL " That is a well-recognized form of fracture,
is it not ? "

Doctor. "Oh, yes."

Counsel (chancing it). " Would you mind telling the
jury about when you had a fracture of this nature in
your regular practice, the last before this one ? "

Doctor (dodging). " I should not feel at liberty Xp
disclose the names of my patients."

Counsel (encouraged). "I am not asking for names
and secrets of patients — far from it. I am only asking
for the date, doctor ; but on your oath."

Doctor. " I couldn't possibly give you the date, sir."

Counsel (still feeling his way). " Was it within the
year preceding this one ? "

Doctor (hesitating). " I would not like to say, sir."

Counsel (still more encouraged). " I am sorry to press
you, sir; but I am obliged to demand a positive answer
from you whether or not you had had a similar case of
* Potts fracture of the ankle' the year preceding this one?"

CROSS-EXAMINATION OF EXPERTS

Doctor. " Well, no, I cannot remember that I had"

CounseL " Did you have one two years before ? "

Doctor. " I cannot say,"

Counsel (forcing the issue), " Did you have one within
five years preceding the plaintiff's case ? "

Doctor. " I am unable to say positively."

CounseL (appreciating the danger of pressing the in-
quiry further, but as a last resort). " Will you swear that
you ever had a case of ' Potts fracture ' within your own
practice before this one ? I tell you frankly, if you say
you have, I shall ask you day and date, time, place, and
circumstance,"

Doctor (much embarrassed). "Your question is an
embarrassing one. I should want time to search my
memory."

CounseL " I am only asking you for your best memory
as a gentteman, and under oath."

Doctor. ** If you put it that way, I will say I cannot
now remember of any case previous to the one in ques-
tion, excepting as a student in the hospitals."

Counsel. " But does- it not require a great deal of
practice and experience to attend successfully so serious
a fracture as that involving the ankle joint? "

Doctor. " Oh, yes."

CounseL **Well, doctor, speaking frankly, won't you
admit that * Potts fractures ' are daily being attended to
in our hospitals by experienced men, and the use of the
ankle fully restored in a few months' time ? "

THE ART OF CROSS-EXAMINATION

Doctor. " That may be, but much depends upon the
age of the patient; and again, in some cases, nothing
seems to make the bones unite."

Counseli^ioo^\xi% under the table and taking up the
two lower bones of the leg attached and approaching
the witness). "Will you please take these, doctor, and
tell the jury whether in life they constituted the bones
of a woman's leg or a man's leg ? "

Doctor. " It is difficult to tell, sir."

Counsel. "What, can't you tell the skeleton of a
woman's leg from a man's, doctor?"

Doctor. " Oh, yes, I should say it was a woman's
leg."

Counsel (smiling and looking pleased). " So in your
opinion, doctor, this was a woman's leg?" [It was a
woman's leg.]

Doctor (observing counsel's face and thinking he had
made a mistake). " Oh, I beg your pardon, it is a man's
leg, of course. I had not examined it carefully."

By this time the jury were all sitting upright in their
seats and evinced much amusement at the doctor's in-
creasing embarrassment.

Counsel (still smiling). " Would you be good enough
to tell the jury if it is the right leg or the left leg?"

Doctor (quietly, but hesitatingly). [It is very difficult
for the inexperienced to distinguish right from left.]
"This is the right leg."

Counsel (astonished). " What do you say, doctor ? "

CROSS-EXAMINATION OF EXPERTS

Doctor (much confused). "Pardon me, it is the left
leg."

Counsel " Were you not right the first time, doctor.
Is it not in fact the right leg ? "

Doctor. " I don't think so ; no, it is the left leg."

Counsel (again stooping and bringing from under the
table the bones of the foot attached together, and hand-
ing it to the doctor). " Please put the skeleton of the
foot into the ankle joint of the bones you already have
in your hand, and then tell me whether it is the right or
left leg."

Doctor (confidently). " Yes, it is the left leg, as I said
before."

Counsel (uproariously). " But, doctor, don't you see
you have inserted the foot into the knee joint? Is that
the way it is in life ? "

The doctor, amid roars of laughter from the jury, in
which the entire court room joined, hastily readjusted
the bones and sat blushing to the roots of his hair.
Counsel waited until the laughter had subsided, and
then said quietly, " I think I will not trouble you
further, doctor."

This incident is not the least bit exaggerated ; on the
contrary, the impression made by the occurrence is diffi-
cult to present adequately on paper. Counsel on both
sides proceeded to sum up the case, and upon the part
of the defence no allusion whatsoever was made to the
incident just described. The jury appreciated the fact,

THE ART OF CROSS-EXAMINATION

and returned a verdict for the plaintiff for $240. Next
day the learned doctor wrote a four-page letter of thanks
and appreciation that the results of his "stage fright" had
not been spread before the jury in the closing speech.

An estimate of the susceptibility of occasional juries
drawn from some country panels to have their attention
diverted from the facts in a case by their fondness for
entertainment has at times induced attorneys to try the
experiment of framing their questions on cross-examina-
tion of medical experts so that the jury will be amused
by the questions themselves and will overlook the damag-
ing testimony given by a serious-minded and learned
opposing medical witness.

An illustration of this was afforded not long ago by a
case brought by a woman against the Trustees of the
New York and Brooklyn Bridge. The plaintiff, while
alighting from a bridge car, stepped into the space
between the car and the bridge platform and fell up to
her armpits. She claimed that she had sustained injuries
to her ribs, lungs, and chest, and that she was suffering
from resultant pleurisy and intercostal neuritis. A spe-
cialist on nerve injuries, called by the defence, had testi-
fied that there was nothing the matter with the plaintiff,
as he had tested her with the stethoscope and had made a
thorough examination, had listened at her chest to detect
such " rales " as are generally left after pleurisy, and had
failed to find any lesions or injuries to the pleura nerve
whatsoever.

CROSS-EXAMINATION OF EXPERTS

The attorney for the plaintiff, Mirabeau L. Towns of
Brooklyn, had evidently correctly "sized up" the par-
ticular jury who were to decide his case, and proceeded
to cross-examine the doctor in rhyme, which the learned
physician, absorbed in his task of defending himself, did
not notice until the laughter of the jury advised him that
he was being made ridiculous.

Mr. Towns arose and said : —

Q. " Now, doctor, please listen to me. You say for
the sake of a modest fee you examined the plainti£E most
carefully?"

A. "I tried to do my duty, sir."

Q. ** But you saw no more than you wanted to see ? "

A. " What do you mean, sir ? "

Q. " Well, you laid your head upon her chest ? "

A. " I did."

Q. " That was a most delightful test ? "

A. " Well, it is the common way of ascertaining if
there is anything abnormal in the lungs."

Q. "And you mean to say, doctor, that if your ears
are as good as mine, and with your knowledge of medi-
cine, a mangled pleura's rale and rattle you'd hear as
plain as guns in battle ? "

A. "I mean to say this, and no more, — that it would
be impossible, if a person was sufiFering from a lacerated
pleura, for me not to detect it by the test I made."

Q. "Now, you did this most carefully?"

A. "I did."

THE ART OF CROSS-EXAMINATION

Q. " For you had to earn your expert's fee ? "

A. "Of course I was paid for my examination, but
that had nothing to do with it. I want you to under-
stand that I made my examination most conscientiously,"

Q. " Can you swear that you saw no more than you
wanted to see?"

A. "I saw nothing."

Q. " And each of her ribs, on your oath as a scholar,
was as good and sound as a daddy's dollar ? "

(Outburst of laughter, and the judge used his gavel-

Dr. appealed to the court for protection, but Mr.

Towns continued.)

Q. "You say you think she was malingering?"

A. " I do."

Q. " So when the poor creature ventured to cope
with you and your science and your stethoscope, for
her you'll acknowledge there was little hope?"

A. " I have come here to tell the truth, and I main-
tain that it would be very hard for a young woman
of her type to deceive me."

(Renewed laughter and the judge's gavel fell with
greater force. Counsel was admonished, but he con-
tinued.)

Q. " She might scream in anguish till the end of her
breath, your opinion once formed you'd hold until death? "

Not answered.

Q. " Though she fell through a hole clear up to
her arm, and that's quite a fall, it did her no harm ; in

CROSS-EXAMINATION OF EXPERTS

fact, if she'd fallen from Mount Chimborazo, you'd say
she's unhurt and continue to say so. Such a fall from
such a height, one might observe, might break all her
ribs, but ne'er injure a nerve ? "

The Doctor. " Your honor, I don't wish to be made
ridiculous by this gentleman, and I protest against his
questions, they are unfair."

Before the court could rule, Mr. Towns continued : —

Q. "And you hope to be seized with the dance of
St. Vitus if you found on the plaintiff intercostal
neuritis ? "

The Doctor. " Your Honor, I refuse to answer."

Here the judge interfered and admonished counsel
that he had pursued this line of inquiry long enough.

That Mr. Towns was correct in his estimate of this
absurd panel of jurors was shown by a very large verdict
in favor of his client, and by a request signed by each
one of the jurors personally that counsel would send
them a copy of his cross-examination of the defendant's
doctor.

As distinguished from the lengthy, though doubtless
scientific, cross-examination of experts in handwriting
with which the profession has become familiar in many
recent famous trials that have occurred in this city, the
following incident cannot fail to serve as a forcible illus-
tration of the suggestions laid down as to the cross-
examination of specialists. It would almost be thought
improbable in a romance, yet every word of it is true.
G 97

THE ART OF CROSS-EXAMINATION

In the trial of Ellison for felonious assault upon
William Henriques, who had brought Mn Ellison's
attentions to his daughter, Mrs. Lila Noeme, to a sud-
den close by forbidding him his house, the authenticity
of some letters, alleged to have been written by Mrs.
Noeme to Mr. Ellison, was brought in question. The
lady herself had strenuously denied that the alleged
compromising documents had ever been written by her.
Counsel for Ellison, the late Charles Brooks, Esq., had
evidently framed his whole cross-examination of Mrs.
Noeme upon these letters, and made a final efifort'to
introduce them in evidence by calling Professor Ames,
the well-known expert in handwriting. He deposed to
having closely studied the letter in question, in con-
junction with an admittedly genuine specimen of the
lady's handwriting, and gave it as his opinion that they
were all written by the same hand. Mr. Brooks then
o£Eered the letters in evidence, and was about to read
them to the jury when the assistant district attorney
asked permission to put a few questions.

District Attorney. " Mr. Ames, as I understood you,
you were given only one sample of the lady's genuine
handwriting, and you base your opinion upon that single
exhibit, is that correct ? "

Witness. " Yes, sir, there was only one letter given me,
but that was quite a long one, and afforded me great
opportunity for comparison."

District Attorney. "Would it not assist you if you

CROSS-EXAMINATION OF EXPERTS

were given a number of her letters with which to make
a comparison ? "

Witness. " Oh, yes, the more samples I had of genu-
ine handwriting, the more valuable my conclusion would
become."

District Attorney (taking from among a bundle of
papers a letter, folding down the signature and handing
it to the witness). "Would you mind taking this one
and comparing it with the others, and then tell us if
that is in the same handwriting ? "

Witness (examining paper closely for a few minutes).
** Yes, sir, I should say that was the same handwriting."

District Attorney. " Is it not a fact, sir, that the same
individual may write a variety of hands upon different
occasions and with different pens ? "

Witness. " Oh, yes, sir; they might vary somewhat."

District Attorney (taking a second letter from his files,
also folding over the signature and handing to the wit-
ness). " Won't you kindly take this letter, also, and com-
pare it with the others you have ? "

Witness (examining the letter). "Yes, sir, that is a
variety of the same penmanship."

District Attorney, " Would you be willing to give it
as your opinion that it was written by the same person ? "

Witness. " I certainly would, sir."

District Attorney (taking a third letter from his files,
again folding over the signature, and handing to the wit-
ness). " Be good enough to take just one more sample

THE ART OF CROSS-EXAMINATION

— I don't want to weary you — and say if this last one
is also in the lady's handwriting."

Witness (appearing to examine it closely, leaving the
witness-chair and going to the window to complete his
inspection). " Yes, sir, you understand I am not swearing
to a fact, only an opinion."

District Attorney (good-naturedly). "Of course I under-
stand ; but is it your honest opinion as an expert, that
these three letters are all in the same handwriting ? "

Witness. " I say yes, it is my honest opinion."

District Attorney. " Now sir, won't you please turn
down the edge where I folded over the signature to the
first letter I handed you, and read aloud to the jury the
signature ? "

Witness (unfolding the letter and reading trium-
phantly). " Lila Noeme''

District Attorney. " Please unfold the second letter
and read the signature."

Witness (reading). " William Henriques^

District Attorney. " Now the third, please."

Witness (hesitating and reading with much embarrass-
ment). " Frank Ellison ! " ^

The alleged compromising letters were never read to
the jury.

^ As a matter of fiurt, father and daughter wrote very much alike, and with
surprising similarity to Mr. Ellison. It was this circumstance that led to the
use of the three letters in the cross-examination.

lOO

CHAPTER VI

THE SEQUENCE OF CROSS-EXAMINATION

CHAPTER VI

THE SEQUENCE OF CROSS-EXAMINATION

Much depends upon the sequence in which one con-
ducts the cross-examination of a dishonest witness. You
should never hazard the important question until you
have laid the foundation for it in such a way that, when
confronted with the fact, the witness can neither deny
nor explain it. One often sees the most damaging docu-
mentary evidence, in the form of letters or affidavits, fall
absolutely flat as exponents of falsehood, merely because
of the unskilful way in which they are handled. If you
have in your possession a letter written by the witness,
in which he takes an opposite position on some part of
the case to the one he has just sworn to, avoid the com-
mon error of showing the witness the letter for identifica-
tion, and then reading it to him with the inquiry, " What
have you to say to that ? " During the reading of his
letter the witness will be collecting his thoughts and get-
ting ready his explanations in anticipation of the ques-
tion that is to follow, and the effect of the damaging letter
will be lost.

The correct method of using such a letter is to lead
the witness quietly into repeating the statements he has

103

THE ART OF CROSS-EXAMINATION

made in his direct testimony, and which his letter contra-
dicts. " I have you down as saying so and so ; will you
please repeat it ? I am apt to read my notes to the jury,
and I want to be accurate." The witness will repeat his
statement. Then write it down and read it off to him.
" Is that correct ? Is there any doubt about it ? For if
you have any explanation or qualification to make, I think
you owe it to us, in justice, to make it before I leave the
subject." The witness has none. He has stated the
fact; there is nothing to qualify; the jury rather like
his straightforwardness. Then let your whole manner
toward him suddenly change, and spring the letter upon
him. " Do you recognize your own handwriting, sir ?
Let me read you from your own letter, in which you say,"
— and afterward — " Now, what have you to say to that ? "
You will make your point in such fashion that the jury
will not readily forget it. It is usually expedient, when
you have once made your point, to drop it and go to
something else, lest the witness wriggle out of it. But
when you have a witness under oath, who is orally con-
tradicting a statement he has previously made, when not
under oath, but in his own handwriting, you then have
him fast on the hook, and there is no danger of his get-
ting away; now is the time to press your advantage.
Put his self-contradictions to him in as many forms as
you can invent: —

" Which statement is true ? " " Had you forgotten this
letter when you gave your testimony to-day ? " " Did

104

THE SEQUENCE OF CROSS-EXAMINATION

you tell your counsel about it ? " " Were you intending
to deceive him ? " " What was your object in trying to
mislead the jury ? " ^

"Some men," said a London barrister who often saw
Sir Charles Russell in action, "get in a bit of the nail,
and there they leave it hanging loosely about until the
judge or some one else pulls it out. But when Russell
got in a bit of the nail, he never stopped until he drove
it home. No man ever pulled that nail out again."

Sometimes it is advisable to deal the witness a sting-
ing blow with your first few questions ; this, of course,
assumes that you have the material with which to do it.
The advantage of putting your best point forward at the
very start is twofold. First, the jury have been listening
to his direct testimony and have been forming their own
impressions of him, and when you rise, to cross-examine,
they are keen for your first questions. If you "land
one " in the first bout, it makes far more impression on
the jury than if it came later on when their attention has
begun to lag, and when it might only appear as a chance
shot. The second, and perhaps more important, eflfect
of scoring on the witness with the first group of ques-
tions is that it makes him afraid of you and less hostile
in his subsequent answers, not knowing when you will
trip him again and give him another fall. This will often

* In Chapter XI {infra) is given in detail the cross-examination of the
witness Pigott by Sir Charles Russell, which affords a most striking example
of the most effective use that can be made of an incriminating letter.

105

THE ART OF CROSS-EXAMINATION

enable you to obtain from him truthful answers on sub-
jects about which you are not prepared to contradict
him.

I have seen the most determined witness completely
lose his presence of mind after two or three well-directed
blows given at the very start of his cross-examination,
and become as docile in the examiner's hands as if he
were his own witness. This is the time to lead the wit-
ness back to his original story and give him the oppor-
tunity to tone it down or retint it, as it were ; possibly
even to switch him over until he finds himself supporting
your side of the controversy. This taming of a hostile
witness, and forcing him to tell the truth against his will,
is one of the triumphs of the cross-examiner's art In a
speech to the jury, Choate once said of such a witness,
" I brand him a vagabond and a villain ; they brought
him to curse, and, behold, he hath blessed us alto-
gether."

Some witnesses, under this style of examination, lose
their tempers completely, and if the examiner only keeps
his own and puts his questions rapidly enough, he will
be sure to lead the witness into such a web of contradic-
tions as entirely to discredit him with any fair-minded
jury. A witness, in anger, often forgets himself and
speaks the truth. His passion benumbs his power to
deceive. Still another sort of witness displays his tem-
per on such occasions by becoming sullen ; he begins by
giving evasive answers, and ends by refusing to answer

io6

THE SEQUENCE OF CROSS-EXAMINATION

at all. He might as well go a little farther and admit
his perjury at once, so far as the effect on the jury is
concerned.

When, however, you have not the material at hand
with which to frighten the witness into correcting his
perjured narrative, and yet you have concluded that a
cross-examination is necessary, never waste time by
putting questions which will enable him to repeat his
original testimony in the sequence in which he first gave
it. You can accomplish nothing with him unless you
abandon the train of ideas he followed in giving his main
story. Select the weakest points of his testimony and
the attendant circumstances he would be least likely to
prepare for. Do not ask your questions in logical order,
lest he invent conveniently as he goes along ; but dodge
him about in his story and pin him down to precise
answers on all the accidental circumstances indirectly
associated with his main narrative. As he begins to invent
his answers, put your questions more rapidly, asking
many unimportant ones to one important one, and all
in the same voice. If he is not telling the truth, and
answering from memory and associated ideas rather than
from imagination, he will never be able to invent his
answers as quickly as you can frame your questions, and
at the same time correctly estimate the bearing his pres-
ent answer may have upon those that have preceded it
If you have the requisite skill to pursue this method of
questioning, you will be sure to land him in a maze of

107

THE ART OF CROSS-EXAMINATION

self-contradictions from which he will never be able to
extricate himself.

Some witnesses, though unwilling to perjure them-
selves, are yet determined not to tell the whole truth if
they can help it, owing to some personal interest in, or
relationship to, the party on whose behalf they are called
to testify. If you are instructed that such a witness (gen-
erally a woman) is in possession of the fact you want and
can help you if she chooses, it is your duty to draw it out
of her. This requires much patience and ingenuity.
If you put the direct question to her at once, you will
probably receive a " don't remember " answer, or she may
even indulge her conscience in a mental reservation and
pretend a willingness but inability to answer. You must
approach the subject by slow stages. Begin with matters
remotely connected with the important fact you are aim-
ing at. She will relate these, not perhaps realizing on
the spur of the moment exactly where they will lead her.
Having admitted that much, you can lead her nearer
and nearer by successive approaches to the gist of the
matter, until you have her in such a dilemma that she
must either tell you what she had intended to conceal
or else openly commit perjury. When she leaves the
witness-chair, you can almost hear her whisper to her
friends, " I never intended to tell it, but that man put me
in such a position • I simply had to tell or admit that I
was lying."

In all your cross-examinations never lose control of

io8

THE SEQUENCE OF CROSS-EXAMINATION

the witness; confine his answers to the exact questions
you ask. He will try to dodge direct answers, or if
forced to answer directly, will attempt to add a qualifica-
tion or an explanation which will rob his answer of the
benefit it might otherwise be to you. And lastly, most
important of all, let me repeat the injunction to be ever
on the alert for a good place to stop. Nothing can be
more important than to close your examination with a
triumph. So many lawyers succeed in catching a wit-
ness in a serious contradiction; but, not satisfied with
this, go on asking questions, and taper off their exami-
nation until the effect upon the jury of their former
advantage is lost altogether. " Stop with a victory " is
one of the maxims of cross-examination. If you have
done nothing more than to expose an attempt to deceive
on the part of the witness, you have gone a long way
toward discrediting him with your jury. Jurymen are
apt to regard a witness as a whole — either they believe
him or they don't. If they distrust him, they are likely
to disregard his testimony altogether, though much of it
may have been true. The fact that remains uppermost
in their minds is that he attempted to deceive them, or
that he left the witness-stand with a lie upon his lips, or
after he had displayed his ignorance to such an extent
that the entire audience laughed at him. Thereafter
his evidence is dismissed from the case so far as they
are concerned.

Erskine once wasted a whole day in trying to expose

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THE ART OF CROSS-EXAMINATION

to a jury the lack of mental balance of a witness, until
a physician who was assisting him suggested that Erskine
ask the witness whether he did not believe himself to be
Jesus Christ. This question was put by Erskine very
cautiously and with studied humility, accompanied by a
request for forgiveness for the indecency of the question.
The witness, who was at once taken unawares, amid
breathless silence and with great solemnity exclaimed,
" I am the Christ " — which soon ended the case.^

^ " Curiosities of Law and Lawyers."

CHAPTER VII

SILENT CROSS-EXAMINATION

CHAPTER VII

SILENT CROSS-EXAMINATION

Nothing could be more absurd or a greater waste of
time than to cross-examine a witness who has testified to
no material fact against you. And yet, strange as it may
seem, the courts are full of young lawyers — and alas I not
only young ones — who seem to feel it their duty to cross-
examine every witness who is sworn. They seem afraid
that their clients or the jury will suspect them of ignorance
or inability to conduct a trial. It not infrequently hap-
pens that such unnecessary examinations result in the
development of new theories of the case for the other
side ; and a witness who might have been disposed of as
harmless by mere silence, develops into a formidable
obstacle in the case.

The infinite variety of types of witnesses one meets with
in court makes it impossible to lay down any set rules
applicable to all cases. One seldom comes in contact
with a witness who is in all respects like any one he has
ever examined before ; it is this that constitutes the fasci-
nation of the art. The particular method you use in any
given case depends upon the degree of importance you
H 113

THE ART OF CROSS-EXAMINATION

attach to the testimony given by the witness, even if it
is false. It may be that you have on your own side so
many witnesses who will contradict the testimony, that it
is not worth while to hazard the risks you will necessarily
run by undertaking an elaborate cross-examination. In
such cases by far the better course is to keep your seat
and ask no questions at all. Much depends also, as will
be readily appreciated, upon the age and sex of the wit-
ness. In fact, it may be said that the truly great trial
lawyer is he who, while knowing perfectly well the es-
tablished rules of his art, appreciates when they should
be broken. If the witness happens to be a woman, and
at the close of her testimony-in-chief it seems that she
will be more than a match for the cross-examiner, it often
works like a charm with the jury to practise upon her
what may be styled the silent cross-examination. Rise
suddenly, as if you intended to cross-examine. The wit-
ness will turn a determined face toward you, preparatory
to demolishing you with her first answer. This is the
signal for you to hesitate a moment. Look her over
good-naturedly and as if you were in doubt whether it
would be worth while to question her — and sit down.
It can be done by a good actor in such a manner as to
be equivalent to saying to the jury, " What's the use ?
she is only a woman."

John Philpot Curran, known as the most popular ad-
vocate of his time, and second only to Erskine as a jury-
lawyer, once indulged himself in this silent mode of

114

SILENT CROSS-EXAMINATION

cross-examination, but made the mistake of speaking his
thoughts aloud before he sat down. " There is no use
asking you questions, for I see the villain in your
face." "Do you, sir?" replied the witness with a
smile. "I never knew before that my face was a
looking-glass."

Since the sole object of cross-examination is to break
the force of the adverse testimony, it must be remem-
bered that a futile attempt only strengthens the witness
with the jury. It cannot be too often repeated, there-
fore, that saying nothing will frequently accomplish more
than hours of questioning. It is experience alone that
can teach us which method to adopt

An amusing instance of this occurred in the trial of
Alphonse Stephani, indicted for the murder of Clinton G.
Reynolds, a prominent lawyer in New York, who had had
the management and settlement of his father's estate.
The defence was insanity ; but the prisoner, though evi-
dently suffering from the early stages of some serious
brain disorder, was still not insane in the legal accepta-
tion of the term. He was convicted of murder in the
second degree and sentenced to a life imprisonment

Stephani was defended by the late William F. Howe,
Esq., who was certainly one of the most successful lawyers
of his time in criminal cases. Howe was not a great
lawyer, but the kind of witnesses ordinarily met with
in such cases he usually handled with a skill that was
little short of positive genius.

115

THE ART OF CROSS-EXAMINATION

Dn Alan McLean Hamilton, the eminent alienist, had
made a special study of Stephani's case, had visited him
for weeks at the Tombs Prison, and had prepared himself
for a most exhaustive exposition of his mental condition.
Dr. Hamilton had been retained by Mr. Howe, and was
to be put forward by the defence as their chief witness.
Upon calling him to the witness-chair, however, he did
not question his witness so as to lay before the jury the
extent of his experience in mental disorders and his
familiarity with all forms of insanity, nor develop before
them the doctor's peculiar opportunities for judging cor-
rectly of the prisoner's present condition. The wily
advocate evidently looked upon District Attorney De-
Lancey NicoU and his associates, who we^e opposed to
him, as a lot of inexperienced youngsters, who would
cross-examine at great length and allow the witness to
make every answer tell with double effect when elicited
by the state's attorney. It has always been supposed
that it was a preconceived plan of action between the
learned doctor and the advocate. In accordance there-
with, and upon the examination-in-chief, Mr. Howe con-
tented himself with this single inquiry : —

"Dr. Hamilton, you have examined the prisoner at
the Bar, have you not?"

" I have, sir," replied Dr. Hamilton.

" Is he, in your opinion, sane or insane ? " continued
Mr. Howe.

" Insane," said Dr. Hamilton.

ii6

SILENT CROSS EXAMINATION

" You may cross-examine," thundered Howe, with one
of his characteristic gestures. There was a hurried con-
sultation between Mr. NicoU and his associates.

" We have no questions," remarked Mr. NicoU, quietly.

" What ! " exclaimed Howe, " not ask the famous Dr.
Hamilton a question ? Well, / will," and turning to the
witness began to ask him how close a study he had
made of the prisoner's symptoms, etc. ; when, upon our
objection. Chief Justice Van Brunt directed the witness
to leave the witness-box, as his testimony was concluded,
and ruled that inasmuch as the direct examination had
been finished, and there had been no cross-examination,
there was no course open to Mr. Howe but to call his
next witness !

Mr. Sergeant Ballantine in his autobiography, " Some
Experiences of a Barrister's Life," gives an account of
the trial for murder of a young woman of somewhat pre-
possessing appearance, who was charged with poisoning
her husband. " They were people in a humble class of
life, and it was suggested that she had committed the
act to obtain possession of money from a burial fund,
and also that she was on terms of improper intimacy
with a young man in the neighborhood. A minute
quantity of arsenic was discovered in the body of the
deceased, which in the defence I accounted for by the
suggestion that poison had been used carelessly for
the destruction of rats. Mr. Baron Parke charged the
jury not unfavorably to the prisoner, dwelling pointedly

117

THE ART OF CROSS-EXAMINATION

upon the small quantity of arsenic found in the body,
and the jury without much hesitation acquitted her.
Dr. Taylor, the professor of chemistry and an experi-
enced witness, had proved the presence of arsenic, and,
as I imagine, to the great disappointment of my solici-
tor, who desired a severe cross-examination, I did not
ask him a single question. He was sitting on the bench
and near the judge, who, after he had summed up and
before the verdict was pronounced, remarked to him that
he was surprised at the small amount of arsenic found ;
upon which Taylor said that if he had been asked the
question, he should have proved that it indicated, under
the circumstances detailed in evidence, that a very large
quantity had been taken. The professor had learned
never to volunteer evidence, and the counsel for the
prosecution had omitted to put the necessary question.
Mr. Baron Parke, having learned the circumstance by
accidental means, did not feel warranted in using the in-
formation, and I had my first lesson in the art of * silent
cross-examination.' " i

Ii8

CHAPTER VIII

CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES

CHAPTER VIII

CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES

The preceding chapters have been devoted to the
legitimate uses of cross-examination — the development
of truth and exposure of fraud.

Cross-examination as to credit has also its legitimate
use to accomplish the same end; but this powerful
weapon for good has almost equal possibilities for evil.
It is proposed in the present chapter to demonstrate
that cross-examination as to credit should be exercised
with great care and caution, and also to discuss some
of the abuses of cross-examination by attorneys, under
the guise and plea of cross-examination as to credit.

Questions which throw no light upon the real issues
in the case, nor upon the integrity or credit of the
witness under examination, but which expose misdeeds,
perhaps long since repented of and lived down, are
often put for the sole purpose of causing humiliation and
disgrace. Such inquiries into private life, private affairs,
or domestic infelicities, perhaps involving innocent per-
sons who have nothing to do with the particular litiga-
tion and who have no opportunity for explanation nor
means of redress, form no legitimate part of the cross-

121

THE ART OF CROSS-EXAMINATION

examiner's art The lawyer who allows himself to
become the mouthpiece of the spite or revenge of his
client may inflict untold suffering and unwarranted tor-
ture. Such questions may be within the legal rights of
counsel in certain instances, but the lawyer who allows
himself to be led astray by his zeal or by the solicitations
of his client, at his elbow, ready to make any sacrifice to
humiliate his adversary, thereby debauches his profession
and surrenders his self-respect, for which an occasional
verdict, won from an impressionable jury by such
methods, is a poor recompense.

To warrant an investigation into matters irrelevant to
the main issues in the case, and calculated to disgrace
the witness or prejudice him in the eyes of the jury, they
must at least be such as tend to impeach his general
moral character and his credibility as a witness. There
can be no sanction for questions that tend simply to
degrade the witness personally, and which can have no
possible bearing upon his veracity.

In all that has preceded we have gone upon the pre-
sumption that the cross-examiner's art would be used to
further his client's cause by all fair and legitimate means,
not by misrepresentation, insinuation, or by knowingly
putting a witness in a false light before a jury. These
methods doubtless succeed at times, but he who practises
them acquires the reputation, with astounding rapidity,
of being " smart," and finds himself discredited not only
with the court, but in some almost unaccountable way,

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CROSS-EXAMINATION TO CREDIT

with the very juries before whom he appears. Let him
once get the reputation of being " unfair " among the
habitues of the court-house, and his usefulness to clients
as a trial lawyer is gone forever. Honesty is the best
policy quite as much with the advocate as in any of the
walks of life.

Counsel may have in his possession material for injuring
the witness, but the propriety of using it often becomes
a serious question even in cases where its use is otherwise
perfectly legitimate. An outrage to the feelings of a
witness may be quickly resented by a jury, and sympathy
take the place of disgust Then, too, one has to reckon
with the judge, and the indignation of a strong judge is
not wisely provoked. Nothing could be more unprofes-
sional than for counsel to ask questions which disgrace
not only the witness, but a host of innocent persons, for
the mere reason that the client wishes them to be
asked.

There could be no better example of the folly of yield-
ing to a client's hatred or desire for revenge than the
outcome of the famous case in which Mrs. Edwin For-
rest was granted a divorce against her husband, the dis-
tinguished tragedian. Mrs. Forrest, a lady of culture
and refinement, demanded her divorce upon the ground
of adultery, and her husband had made counter-charges
against her. At the trial (185 1) Charles O'Connor,
counsel for Mrs. Forrest, called as his first witness the
husband himself, and asked him concerning his infideli-

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THE ART OF CROSS-EXAMINATION

ties in connection with a certain actress. John Van
Buren, who appeared for Edwin Forrest, objected to the
question on the ground that it required his client to
testify to matters that might incriminate him. The
question was not allowed, and the husband left the wit-
ness-stand. After calling a few unimportant witnesses,
O'Connor rested the case for plaintiff without having
elicited any tangible proof against the husband. Had
a motion to take the case from the jury been made at
this time, it would of necessity have been granted, and
the wife's suit would have failed. It is said that when
Mr. Van Buren was about to make such a motion and
end the case, Mr. Forrest directed him to proceed with
the testimony for the defence, and develop the nauseating
evidence he had accumulated against his wife. Van
Buren yielded to his client's wishes, and for days and
weeks continued to call witness after witness to the
disgusting details of Mrs. Forrest's alleged debauchery.
The case attracted great public attention and was widely
reported by the newspapers. The public, as so often
happens, took the opposite view of the evidence from the
one the husband had anticipated. Its very revolting
character aroused universal sympathy on the wife's be-
half. Mr. O'Connor soon found himself flooded with
offers of evidence, anon)anous and otherwise, against the
husband, and when Van Buren finally closed his attack
upon the wife, O'Connor was enabled, in rebuttal, to
bring such an avalanche of convincing testimony against

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CROSS-EXAMINATION TO CREDIT

the defendant that the jury promptly exonerated Mrs.
Forrest and granted her the divorce. At the end of the
first day's trial the case could have been decided in favor
of the husband, had a simple motion to that effect been
made ; but, yielding to his client's hatred of his wife, and
after a hard-fought trial of thirty-three days, Mr. Van
Buren found both himself and his client ignominiously
defeated. This error of Mr. Van Buren's was widely
commented on by the profession at the time. He had
but lately resigned his office at Albany as attorney gen-
eral, and up to the time of this trial had acquired no little
prestige in his practice in the city of New York, which,
however, he never seemed to regain after his fatal blunder
in the Forrest divorce case.^

The abuse of cross-examination has been widely dis-
cussed in England in recent years, partly in consequence
of the cross-examination of a Mrs. Bravo, whose hus-
band had died by poison. He had lived unhappily with
her on- account of the attentions of a certain physician.
During the inquiry into the circumstances of her hus-
band's death, the story of the wife's intrigue was made
public through her cross-examination. Sir Charles Rus-
sell, who was then regarded as standing at the head of
the Bar, both in the extent of his business and in his
success in court, and Sir Edward Clark, one of her
Majesty's law officers, with a high reputation for ability
in jury trials, were severely criticised as " forensic bul-

1 " Extraordinary Cases,'' H. L, ainton.
125

THE ART OF CROSS-EXAMINATION

lies," and complained of as "lending the authority of
their example to the abuse of cross-examination to credit
which was quickly followed by barristers of inferior posi-
tions, among whom the practice was spreading of assail*
ing witnesses with what was not unfairly called a system
of innuendoes, suggestions, and bullying from which
sensitive persons recoil." And Mr. Charles Gill, one
of the many imitators of Russell's domineering style,
was criticised as " bettering the instructions of his elders."

The complaint against Russell was that by his prac-
tices as displayed in the Osborne case — 'robbery of
jewels — not only may a man's, or a woman's, whole
past be laid bare to malignant comment and public
curiosity, but there is no means afforded by the courts
of showing how the facts really stood or of producing
evidence to repel the damaging charges.

Lord Bramwell, in an article published originally in
Nineteenth Century for February, 1892, and republished
in legal periodicals all over the world, strongly defends
the methods of Sir Charles Russell and his imitators.
Lord Bramwell claimed to speak after an experience of
forty-seven years' practice at the Bar and on the bench,
and long acquaintance with the legal profession.

" A judge's sentence for a crime, however much re-
pented of, is not the only punishment ; there is the con-
sequent loss of character in addition, which should
confront such a person whenever called to the witness-
stand." " Women who carry on illicit intercourse, and

126

CROSS-EXAMINATION TO CREDIT

whose husbands die of poison, must not complain at
having the veil that ordinarily screens a woman's life
from public inquiry rudely torn aside." " It is well for
the sake of truth that there should be a wholesome dread
of cross-examination." " It should not be understood to
be a trivial matter, but rather looked upon as a trying
ordeal." " None but the sore feel the probe." Such
were some of the many arguments of the various up-
holders of broad license in examinations to credit.

Lord Chief Justice Cockburn took the opposite view
of the question. " I deeply deplore that members of the
Bar so frequently unnecessarily put questions affecting
the private life of witnesses, which are only justifiable
when they challenge the credibility of a witness. I
have watched closely the administration of justice in
France, Germany, Holland, Belgium, Italy, and a little
in Spain, as well as in the United States, in Canada,
and in Ireland, and in no place have I seen witnesses
so badgered, browbeaten, and in every way so brutally
maltreated as in England. The way in which we treat
our witnesses is a national disgrace and a serious obstacle,
instead of aiding the ends of justice. In England the
most honorable and conscientious men loathe the wit-
ness-box. Men and women of all ranks shrink with
terror from subjecting themselves to the wanton
insult and bullying misnamed cross-examination in our
English courts. Watch the tremor that passes the
frames of many persons as they enter the witness-box.

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THE ART OF CROSS-EXAMINATION

I remember to have seen so distinguished a man as the
late Sir Benjamin Brodie shiver as he entered the wit-
ness-box. I daresay his apprehension amounted to
exquisite torture. Witnesses are just as necessary for
the administration of justice as judges or jurymen, and
are entitled to be treated with the same consideration,
and their affairs and private lives ought to be held as
sacred from the gaze of the public as those of the
judges or the jurymen. I venture to think that it is
the duty of a judge to allow no questions to be put to
a witness, unless such as are clearly pertinent to the
issue before the court, except where the credibility of
the witness is deliberately challenged by counsel and
that the credibility of a witness should not be wantonly
challenged on slight grounds." ^

The propriety or impropriety of questions to credit is
of course largely addressed to the discretion of the court.
Such questions are generally held to be fair when, if the
imputation they convey be true, the opinion of the court
would be seriously affected as to the credibility of the
witness on the matter to which he testifies; they are
unfair when the imputation refers to matters so remote
in time, or of such character that its truth would not
affect the opinion of the court; or if there be a great
disproportion between the importance of the imputa-
tion and the importance of the witness's evidence.*

A judge, however, to whose discretion such questions

1 « Irish Law Times," 1874. * Sir James Stephen's Evidence Act.

CROSS-EXAMINATION TO CREDIT

are addressed in the first instance, can have but an imper-
fect knowledge of either side of the case before him. He
cannot always be sure, without hearing all the facts,
whether the questions asked would or would not tend
to develop the truth rather than simply degrade the
witness. Then, again, the mischief is often done by the
mere asking of the question, even if the judge directs
the witness not to answer. The insinuation has been
made publicly — the dirt has been thrown. The dis-
cretion must therefore after all be largely left to the
lawyer himself. He is bound in honor, and out of respect
to his profession, to consider whether the question ought
in conscience to be asked — whether in his own honest
judgment it renders the witness unworthy of belief under
oath — before he allows himself to ask it. It is much
safer, for example, to proceed upon the principle that the
relations between the sexes has no bearing whatever
upon the probability of the witness telling the truth,
unless in the extreme case of an abandoned woman.

In criminal prosecutions the district attorney is
usually regarded by the jury much in the light of a
judicial officer and, as such, unprejudiced and impartial.
Any slur or suggestion adverse to a prisoner's witness
coming from this source, therefore, has an added power
for evil, and is calculated to do injustice to the defend-
ant. There have been many flagrant abuses of this
character in the criminal courts of our own city. " Is
it not a fact that you were not there at all ? " " Has all
I 129

THE ART OF CROSS-EXAMINATION

this been written out for you ? " " Is it not a fact that
you and your husband have concocted this whole
story ? " " You have been a witness for your husband
in every lawsuit he has had, have you not? " — were all
questions that were recently criticised by the court, on
appeal, as " innuendo," and calculated to prejudice the
defendant — by the Michigan Supreme Court in the
People vs. Cahoon — and held sufficient, in connection
with other similar errors, to set the conviction aside.

Assuming that the material with which you propose
to assail the credibility of a witness fully justifies the
attack, the question then arises, How to use this material
to the best advantage? The sympathies of juries are
keen toward those obliged to confess their crimes on the
witness-stand. The same matters may be handled to
the advantage or positive disadvantage of the cross-
examiner. If you hold in your possession the evidence
of the witness's conviction, for example, but allow him
to understand that you know his history, he will surely
get the better of you. Conceal it from him, and he
will likely try to conceal it from you, or lie about it
if necessary. " I don't suppose you have ever been in
trouble, have you ? " will bring a quick reply, " What
trouble ? " — " Oh, I can't refer to any particular trouble.
I mean generally, have you ever been in jail ? " The
witness will believe you know nothing about him and
deny it, or if he has been many times convicted, will
admit some small offence and attempt to conceal every-

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CROSS-EXAMINATION TO CREDIT

thing but what he suspects you know already about him.
This very attempt to deceive, if exposed, will destroy
him with the jury far more effectually than the knowl-
edge of the offences he has committed. On the other
hand, suppose you taunt him with his crime in the first
instance ; ten to one he will admit his wrong-doing in
such a way as to arouse toward himself the sympathy
of the jury and their resentment toward the lawyer
who was unchristian enough to uncover to public view
offences long since forgotten.

Chief Baron Pollock once presided at a case where
a witness was asked about a conviction years gone by,
though his (the witness's) honesty was not doubted. The
baron burst into tears at the answer of the witness.

In the Bellevue Hospital case (the details of which are
fully described in a subsequent chapter), and during the
cross-examination of the witness Chambers, who was con-
fined in the Pavilion for the Insane at the time, the writer
was imprudent enough to ask the witness to explain to
the jury how he came to be confined on Ward's Island,
only to receive the pathetic reply: "I was sent there
because I was insane. You see my wife was very ill with
locomotor ataxia. She had been ill a year ; I was her only
nurse. I tended her day and night. We loved each other
dearly. I was greatly worried over her long illness and
frightful suffering. The result was, I worried too deeply ;
she had been very good to me. ' I overstrained myself,
my mind gave way ; but I am better now, thank you."

131

CHAPTER IX

GOLDEN RULES FOR THE EXAMINATION OF WITNESSES

CHAPTER IX

GOLDEN RULES FOR THE EXAMINATION OF WITNESSES

David Paul Brown, a member of the Philadelphia
Bar, has condensed his experiences into eighteen para-
graphs which he has entitled, " Golden Rules for the
Examination of Witnesses."

Although I am of the opinion that it is impossible to
embody in any set of rules the art of examination of wit-
nesses, yet the Golden Rules of Brown contain so many
useful and valuable suggestions concerning the art, that
it is well to reprint them here for the benefit of the stu-
dent

Golden Rules for the Examination of Witnesses

First, as to your own witnesses.

I. If they are bold, and may injure your cause by pert-
ness or forwardness, observe a gravity and ceremony of
manner toward them which may be calculated to repress
their assurance.

II. If they are alarmed or diffident, and their thoughts
are evidently scattered, commence your examination
with matters of a familiar character, remotely connected
with the subject of their alarm, or the matter in issue ; as,

135

THE ART OF CROSS-EXAMINATION

for instance, — Where do you live ? Do you know the
parties ? How long have you known them ? etc. And
when you have restored them to their composure, and
the mind has regained its equilibrium, proceed to the
more essential features of the case, being careful to be
mild and distinct in your approaches, lest you may again
trouble the fountain from which you are to drink.

III. If the evidence of your own witnesses be unfavor-
able to you (which should always be carefully guarded
against), exhibit no want of composure; for there are
many minds that form opinions of the nature or char-
acter of testimony chiefly from the effect which it may
appear to produce upon the counsel.

IV. If you perceive that the mind of the witness is
imbued with prejudices against your client, hope but
little from such a quarter — unless there be some facts
which are essential to your client's protection, and which
that witness alone can prove, either do not call him, or
get rid of him as soon as possible. If the opposite coun-
sel perceive the bias to which I have referred, he may
employ it to your ruin. In judicial inquiries, of all pos-
sible evils, the worst and the least to be resisted is an
enemy in the disguise of a friend. You cannot impeach
him; you cannot cross-examine him; you cannot dis-
arm him ; you cannot indirectly, even, assail him ; and
if you exercise the only privilege that is left to you, and
call other witnesses for the purposes of explanation, you
must bear in mind that, instead of carrying the war into

136

GOLDEN RULES FOR EXAMINING WITNESSES

the enemy's country, the struggle is still between sections
of your own forces, and in the very heart, perhaps, of your
own camp. Avoid this, by all means.

V. Never call a witness whom your adversary will be
compelled to call. This will ajBford you the privilege of
cross-examination, — take from your opponent the same
privilege it thus gives to you, — and, in addition thereto,
not only render everything unfavorable said by the wit-
ness doubly operative against the party calling him, but
also deprive that party of the power of counteracting the
effect of the testimony.

VI. Never ask a question without an object, nor
without being able to connect that object with the case,
if objected to as irrelevant

VII. Be careful not to put your question in such a
shape that, if opposed for informality, you cannot sustain
it, or, at all events, produce strong reason in its support.
Frequent failures in the discussions of points of evidence
enfeeble your strength in the estimation of the jury, and
greatly impair your hopes in the final rfesult.

VIII. Never object to a question from your adversary
without being able and disposed to enforce the objection.
Nothing is so monstrous as to be constantly making
and withdrawing objections; it either indicates a want
of correct perception in making them, or a deficiency of
real or of moral courage in not making them good.

IX. Speak to your witness clearly and distinctly, as if
you were awake and engaged in a matter of interest,

137

THE ART OF CROSS-EXAMINATION

and make him also speak distinctly and to your question.
How can it be supposed that the court and jury will be
inclined to listen, when the only struggle seems to be
whether the counsel or the witness shall first go to sleep ?

X, Modulate your voice as circumstances may direct,
" Inspire the fearful and repress the bold."

XI. Never begin before you are ready ^ and always
finish when you have done. In other words, do not ques-
tion for question's sake, but for an answer.

Cross-examination

I. Except in indifferent matters, never take your eye
from that of the witness ; this is a channel of communi-
cation from mind to mind, the loss of which nothing can
compensate.

" Truth, falsehood, hatred, anger, scorn, despair,
And all the passions — all the soul — is there."

II. Be not regardless, either, of the voice of the wit-
ness ; next to the eye this is perhaps the best interpreter
of his mind. The very design to screen conscience
from crime — the mental reservation of the witness —
is often manifested in the tone or accent or emphasis of
the voice. For instance, it becoming important to know
that the witness was at the corner of Sixth and Chestnut
streets at a certain time, the question is asked. Were
you at the corner of Sixth and Chestnut streets at six
o'clock? A frank witness would answer, perhaps I

138

GOLDEN RULES FOR EXAMINING WITNESSES

was near there. But a witness who had been there, de-
sirous to conceal the fact, and to defeat your object,
speaking to the letter rather than the spirit of the in-
quiry, answers, No ; although he may have been within
a stone's throw of the place, or at the very place, within
ten minutes of the time. The common answer of such
a witness would be, I was not at the comer at six o'clock.
Emphasis upon both words plainly implies a mental
evasion or equivocation, and gives rise with a skilful
examiner to the question, At what hour were you at the
corner, or at what place were you at six o'clock ? And
in nine instances out of ten it will appear, that the wit-
ness was at the place about the time, or at the time
about the place. There is no scope for further illustra-
tions; but be watchful, I say, of the voice, and the
principle may be easily applied.

III. Be mild with the mild; shrewd with the crafty;
confiding with the honest; merciful to the young,
the frail, or the fearful; rough to the ruffian, and a
thunderbolt to the liar. But in all this, never be un-
mindful of your own dignity. Bring to bear all the
powers of your mind, not that you may shine, but that
virtue may triumph, and your cause may prosper.

IV. In a criminal, especially in a capital case, so long
as your cause stands well, ask but few questions; and
be certain never to ask any the answer to which, if
against you, may destroy your client, unless you know
the witness perfectly well, and know that his answer will

139

THE ART OF CROSS-EXAMINATION

be favorable equally ^f^ ; or unless you be prepared with
testimony to destroy him, if he play traitor to the truth
and your expectations.

V. An equivocal question is almost as much to be
avoided and condemned as an equivocal answer ; and it
always leads to, or excuses^ an equivocal answer. Single-
ness of purpose, clearly expressed, is the best trait in the
examination of witnesses, whether they be honest or the
reverse. Falsehood is not detected by cunning, but by
the light of truth, or if by cunning, it is the cunning of
the witness, and not of the counsel.

VI. If the witness determine to be witty or refractory
with you, you had better settle that account with him at
firsts or its items will increase with the examination.
Let him have an opportunity of satisfying himself either
that he has mistaken your power, or his own. But in
any result, be careful that you do not lose your temper ;
anger is always either the precursor or evidence of
assured defeat in every intellectual conflict

VII. Like a skilful chess-player, in every move, fix
your mind upon the combinations and relations of the
game — partial and temporary success may otherwise
end in total and remediless defeat.

VIII. Never undervalue your adversary, but stand
steadily upon your guard ; a random blow may be just
as fatal as though it were directed by the most consum-
mate skill ; the negligence of one often cures, and some-
times renders effective, the blunders of another.

140

GOLDEN RULES FOR EXAMINING WITNESSES

IX. Be respectful to the court and to the jury ; kind
to your colleague; civil to your antagonist; but never
sacrifice the slightest principle of duty to an overweening
deference toward either.

In " The Advocate, his Training, Practice, Rights, and
Duties," written by Cox, and published in England about
a half century ago, there is an excellent chapter on cross-
examination, to which the writer is indebted for many
suggestions. Cox closes his chapter with this final
admonition to the students, to whom his book is evi-
dently addressed : —

" In concluding these remarks on cross-examination,
the rarest, the most useful, and the most difficult to be
acquired of the accomplishments of the advocate, we
would again urge upon your attention the importance
of calm discretion. In addressing a jury you may some-
times talk without having anything to say, and no harm
will come of it. But in cross-examination every question
that does not advance your cause injures it If you have
not a definite object to attain, dismiss the witness with-
out a word. There are no harmless questions here ; the
most apparently unimportant may bring destruction or
victory. If the summit of the orator's art has been
rightly defined to consist in knowing when to sit down,
that of an advocate may be described as knowing when
to keep his seat Very little experience in our courts
will teach you this lesson, for every day will show to your
observant eye instances of self-destruction brought about

141

THE ART OF CROSS-EXAMINATION

by imprudent cross-examination. Fear not that your
discreet reserve may be mistaken for carelessness or
want of self-reliance. The true motive will soon be
seen and approved. Your critics are lawyers, who know
well the value of discretion in an advocate; and how
indiscretion in cross-examination cannot be compensated
by any amount of ability in other duties. The attorneys
are sure to discover the prudence that governs your
tongue. Even if the wisdom of your abstinence be not
apparent at the moment, it will be recognized in the
result. Your fame may be of slower growth than that
of the talker, but it will be larger and more enduring."

142

CHAPTER X

SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS

CHAPTER X

SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS

One of the best ways to acquire the art of cross-
examination is to study the methods of the great cross-
examiners who serve as models for the legal profession.

Indeed, nearly every great cross-examiner attributes
his success to the fact of having had the opportunity
to study the art of some great advocate in actual
practice.

In view of the fact also that a keen interest is always
taken in the personality and life sketches of great cross-
examiners, it has seemed fitting to introduce some brief
sketches of great cross-examiners, and to give some illus-
trations of their methods.

Sir Charles Russell, Lord Russell of Killowen, who
died in February, 1901, while he was Lord Chief Justice
of England, was altogether the most successful cross-
examiner of modem times. Lord Coleridge said of him
while he was still practising at the bar, and on one
side or the other in nearly every important case tried,
" Russell is the biggest advocate of the century."

It has been said that his success in cross-examination,
like his success in everything, .was due to his force of
K 145

THE ART OF CROSS-EXAMINATION

character. It was his striking personality, added to his
skill and adroitness, which seemed to give him his over-
whelming influence over the witnesses whom he cross-
examined. Russell is said to have had a wonderful
faculty for using the brain and knowledge of other men.
Others might possess a knowledge of the subject far in
excess of Russell, but he had the reputation of being
able to make that knowledge valuable and use it in his
examination of a witness in a way altogether unexpected
and unique.

Unlike Rufus Choate, "The Ruler of the Twelve,"
and by far the greatest advocate of the century on this
side of the water, Russell read but little. He belonged
to the category of famous men who " neither found nor
pretended to find any real solace in books." With
Choate, his library of some eight thousand volumes was
his home, and "his authors were the loves of his life."
Choate used to read at his meals and while walking in
the streets, for books were his only pastime. Neither
was Russell a great orator, while Choate was ranked as
" the first orator of his time in any quarter of the globe
where the English language was spoken, or who was
ever seen standing before a jury panel."

Both Russell and Choate were consummate actors;
they were both men of genius in their advocacy. Each
knew the precise points upon which to seize; each
watched every turn of the jury, knew at a glance what
was telling with them, knew how to use to the best

146

SOME FAMOUS CROSS-EXAMINERS

advantage every accident that might arise in the prog-
ress of the case.

" One day a junior was taking a note in the orthodox
fashion, Russell was taking no note, but he was thor-
oughly on the alert, glancing about the court, sometimes
at the judge, sometimes at the jury, sometimes at the
witness or the counsel on the other side. Suddenly he
turned to the junior and said, * What are you doing ? '

• Taking a note,' was the answer. * What the devil do
you mean by saying you are taking a note ? Why don't
you watch the case?' he burst out. ^^ had been

* watching ' the case. Something had happened to make
a change of front necessary, and he wheeled his col-
leagues around almost before they had time to grasp the
new situation." ^

Russell's maxim for cross-examination was, "Go
straight at the witness and at the point; throw your
cards on the table, mere finesse English juries do not
appreciate."

Speaking of Russell's success as a cross-examiner, his
biographer, Barry O'Brien says : " It was a fine sight to
see him rise to cross-examine. His very appearance
must have been a shock to the witness, — the manly,
defiant bearing, the noble brow, the haughty look, the
remorseless mouth, those deep-set eyes, widely opened,
and that searching glance which pierced the very soul.
'Russell,' said a member of the Northern Circuit, *pro-

1 " Life of Lord RusseU," Barry O'Brien.
147

THE ART OF CROSS-EXAMINATION

duced the same efifect on a witness that a cobra produces
on a rabbit' In a certain case he appeared on the
wrong side. Thirty-two witnesses were called, thirty-one
on the wrong side, and one on the right side. Not one
of the thirty-one was broken down in cross-examination ;
but the one on the right side was utterly annihilated by
RusselL

" * How is Russell getting on ? ' a friend asked one of
the judges of the Parnell Commission during the days
of Pigott's cross-examination. * Master Charlie is bowl-
ing very straight,' was the answer. 'Master Charlie'
always bowled ' very straight,' and the man at the wicket
generally came quickly to grief. I have myself seen
him approach a witness with great gentleness — the
gentleness of a lion reconnoitring his prey. I have also
seen him fly at a witness with the fierceness of a tiger.
But, gentle or fierce, he must have always looked a very
ugly object to the man who had gone into the box to
lie."

Rufus Choate had little of Russell's natural force
with which to command his witnesses ; his effort was to
magnetize, he was called " the wizard of the court room."
He employed an entirely different method in his cross-
examinations. He never assaulted a witness as if de-
termined to browbeat him. " Commenting once on the
cross-examination of a certain eminent counsellor at the
Boston Bar with decided disapprobation, Choate said,
* This man goes at a witness in such a way that he in-

148

SOME FAMOUS CROSS-EXAMINERS

evitably gets the jury all on the side of the witness, I
do not,' he added, * think that is a good plan.' His own
plan was far more wary, intelligent, and circumspect
He had a profound knowledge of human nature, of the
springs of human action, of the thoughts of human
hearts. To get at these and make them patent to the
jury, he would ask only a few telling questions — a very
few questions, but generally every one of them was fired
point-blank, and hit the mark. His motto was : ' Never
cross-examine any more than is absolutely necessary.
If you don't break your witness, he breaks you.' He
treated every man who appeared like a fair and honest
person on the stand, as if upon the presumption that he
was a gentleman; and if a man appeared badly, he
demolished him, but with the air of a surgeon perform-
ing a disagreeable amputation — as if he was profoundly
sorry for the necessity. Few men, good or bad, ever
cherished any resentment against Choate for his cross-
examination of them. His whole style of address to the
occupants of the witness-stand was soothing, kind, and
reassuring. When he came down heavily to crush a
witness, it was with a calm, resolute decision, but no
asperity — nothing curt, nothing tart,"^

Choate's idea of the proper length of an address to

a jury was that ** a speaker makes his impression, if he

ever makes it, in the first Aour, sometimes in the first

fifteen minutes ; for if he has a proper and firm grasp

^ << Reminisceaces of Ruius Choate,^ Parker.

149

THE ART OF CROSS-EXAMINATION

of his case, he then puts forth the outline of his grounds
of argument. He plays the overture^ which hints at or
announces all the airs of the coming opera. All the
rest is mere filling up : answering objections, giving one
juryman little arguments with which to answer the ob-
jections of his fellows, etc. Indeed, this may be taken
as a fixed rule, that the popular mind can never be vig-
orously addressed, deeply moved, and stirred and fixed
more than one hour in any single address."

What Choate was to America, and Erskine, and later
Russell, to England, John Philpot Curran was to Ireland.
He ranked as a jury lawyer next to Erskine. The son
of a peasant, he became Master of Rolls for Ireland in
1806. He had a small, slim body, a stuttering, harsh,
shrill voice, originally of such a diffident nature that in
the midst of his first case he became speechless and
dropped his brief to the floor, and yet by perseverance
and experience he became one of the most eloquent and
powerful forensic advocates of the world. As a cross-
examiner it was said of Curran that " he could unravel
the most ingenious web which perjury ever spun, he
could seize on every fault and inconsistency, and build
on them a denunciation terrible in its earnestness." ^

It was said of Scarlett, Lord Abinger, that he won
his cases because there were twelve Sir James Scarletts
in the jury-box. He became one of the leading jury
lawyers of his time, so far as winning verdicts was con-

1 "Life Sketches of Eminent Lawyers," Gilbert J. Clark.
150

SOME FAMOUS CROSS-EXAMINERS

cerned. Scarlett used to wheedle the juries over the
weak places in his case. Choate would rush them right
over with that enthusiasm which he put into everything,
" with fire in his eye and fury on his tongue." Scarlett
would level himself right down to each juryman, while
he flattered and won them. In his cross-examinations
" he would take those he had to examine, as it were by
the hand, made them his friends, entered into familiar
conversation with them, encouraged them to tell him
what would best answer his purpose, and thus secured a
victory without appearing to commence a conflict"

A story is told about Scarlett by Justice Wightman who
was leaving his court one day and found himself walking
in a crowd alongside a countryman, whom he had seen, day
by day, serving as a juryman, and to whom he could not
help speaking. Liking the look of the man, and finding
that this was the first occasion on which he had been at
the court. Judge Wightman asked him what he thought
of the leading counsel. "Well," said the countryman,
" that lawyer Brougham be a wonderful man, he can talk,
he can, but I don't think nowt of Lawyer Scarlett" —
? Indeed!" exclaimed the judge, "you surprise me, for
you have given him all the verdicts." — " Oh, there's nowt
in that," was the reply, " he be so lucky, you see, he be
always on the right side." ^

Choate also had a way of getting himself " into the
jury-box," and has been known to address a single jury-

* " Curiosities of Law and Lawyers."
151

THE ART OF CROSS-EXAMINATION

man, who he feared was against him, for an hour at a
time. After he had piled up proof and persuasion all
together, one of his favorite expressions was, " But this
is only half my case, gentlemen, I go now to the main
body of my proofs."

Like Scarlett, Erskine was of medium height and
slender, but he was handsome and magnetic, quick and
nervous, " his motions resembled those of a blood horse
— as light, as limber, as much betokening strength and
speed." He, too, lacked the advantage of a college edu-
cation and was at first painfully unready of speech. In
his maiden e£Fort he would have abandoned his case,
had he not felt, as he said, that his children were tug-
ging at his gown. " In later years," Choate once said of
him, " he spoke the best English ever spoken by an ad-
vocate." Once, when the presiding judge threatened to
commit him for contempt, he replied, "Your Lordship
may proceed in what manner you think fit; I know my
duty as well as your Lordship knows yours." His simple
grace of diction, quiet and natural passion, was in marked
contrast to Rufus Choate, whose delivery has been de-
scribed as " a musical flow of rhythm and cadence, more
like a long, rising, and swelling song than a talk or an
argument" To one of his clients who was dissatisfied
with Erskine's efforts in his behalf, and who had written
his counsellor on a slip of paper, " 111 be hanged if I
don*t plead my own cause," Erskine quietly replied,
"You'll be hanged if you do." Erskine boasted that

152

50ME FAMOUS CROSS-EXAMINERS

in twenty ye^rs he had never been kept a day from court
by ill health. And it is said of Curran that he has been
known to rise before a jury, after a session of sixteen
hours with only twenty minutes' intermission, and make
one of the most memorable arguments of his life.

Among the more modern advocates of the English
Bar, Sir Henry Hawkins stands out conspicuously. He
is reputed to have taken more money away with him
from the Bar than any man of his generation. His lead-
ing characteristic when at the Bar, was his marvellous
skill in cross-examination. He was associated with Lord
Coleridge in the first Tichborne trial, and in his cross-
examination of the witnesses, Baignet and Carter, he
made his reputation as " the foremost cross-examiner in
the world." ^ Sir Richard Webster was another great
cross-examiner. He is said to have received $icx:),cxx) for
his services in the trial before the Parnell Special Commis-
sion, in which he was opposed to Sir Charles Russell.

Rufus Choate said of Daniel Webster, that he con-
sidered him the grandest lawyer in the world. And on
his death-bed Webster called Choate the most brilliant
man in America. Parker relates an episode character-
istic of the clashing of swords between these two idols
of the American Bar. "We heard Webster once, in
a sentence and a look, crush an hour's argument of
Choate's curious workmanship; it was most intellectu-
ally wire-drawn and hair-splitting, with Grecian sophis-

1 <' Life Sketches of Eminent Lawyers,'' Clark.
153

THE ART OF CROSS-EXAMINATION

try, and a subtlety the Leontine Gorgias might have
envied. It was about two car-wheels, which to common
eyes looked as like as two eggs ; but Mr. Choate, by a
fine line of argument between tweedle-dum and tweedle-
dee, and a discourse on * the fixation of points ' so deep
and fine as to lose itself in obscurity, showed the jury
there was a heaven-wide difference between them.
' But,' said Mr. Webster, and his great eyes opened wide
and black, as he stared at the big twin wheels before
him, 'gentlemen of the jury, there they are — look at
'em ; ' and as he pronounced this answer, in tones of vast
volume, the distorted wheels seemed to shrink back
again into their original similarity, and the long argu-
ment on the 'fixation of points' died a natural death.
It was an example of the ascendency of mere character
over mere intellectuality ; but so much greater, never-
theless, the intellectuality r ^

Jeremiah Mason was quite on a par with either Choate
or Webster before a jury. His style was conversational
and plain. He was no orator. He would go close up
to the jury-box, and in the plainest possible logic force
conviction upon his hearers. Webster said he "owed
his own success to the close attention he was compelled
to pay for nine successive years, day by day, to Mason's
efforts at the same Bar." As a cross-examiner he had no
peer at the New England Bar.

In the history of our own New York Bar there have

^ '< Reminiscences of Rufus Choate," Parker.
154

SOME FAMOUS CROSS-EXAMINERS

been, probably, but few equals of Judge William Fuller-
ton as a cross-examinen He was famous for his calmness
and mildness of manner, his rapidly repeated questions ;
his sallies of wit interwoven with his questions, and an
ingenuity of method quite his own.

FuUerton's cross-examinations in the celebrated Tilton
vs. Henry Ward Beecher case gave him an international
reputation, and were considered the best ever heard in
this country. And yet these very examinations, labori-
ous and brilliant, were singularly unproductive of results,
owing probably to the unusual intelligence and shrewd-
ness of the witnesses themselves. The trial as a whole
was by far the most celebrated of its kind the New York
courts have ever witnessed. One of the most eminent
of Christian preachers was charged with using the per-
suasive powers of his eloquence, strengthened by his
religious influence, to alienate the affections and destroy
the probity of a member of his church — a devout and
theretofore pure-souled woman, the wife of a long-loved
friend. He was charged with continuing the guilty rela-
tion during the period of a year and a half, and of cloak-
ing the offence to his own conscience and to hers under
specious words of piety; of invoking first divine blessing
on it, and then divine guidance out of it ; and finally of
adding perjury to seduction in order to escape the con-
sequences. His accusers, moreover, Mr. Tilton and Mr.
Moulton, were persons of public reputation and honorable
station in life.

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THE ART OF CROSS-EXAMINATION

The length and complexity of FuUerton's cross-exami-
nations preclude any minute mention of them here.
Once when he found fault with Mr. Beecher for not
answering his questions more freely and directly, the
reply was frankly made, " / am afraid of you ! "

While cross-examining Beecher about the celebrated
" ragged letter," FuUerton asked why he had not made
an explanation to the church, if he was innocent. Beecher
answered that he was keeping his part of the compact of
silence, and added that he did not believe the others were
keeping theirs. There was audible laughter throughout
the court room at this remark, and Judge Neilson ordered
the court officer to remove from the court room any per-
son found offending — " Except the counsel," spoke up
Mr. FuUerton. Later the cross-examiner exclaimed im-
patiently to Mr. Beecher that he was bound to find out
all about these things before he got through, to which
Beecher retorted, " I don't think you are succeeding very
well."

Mr. Fullerton (in a voice like thunder). " Why did you
not rise up and deny the charge ? "

Mr. Beecher (putting into his voice all that marvellous
magnetic force, which so distinguished him from other
men of his time). " Mr. Fullerton, that is not my habit
of mind, nor my manner of dealing with men and
things."

Mr. Fullerton. " So I observe. You say that Theo-
dore Tilton's charge of intimacy with his wife, and the

156

SOME FAMOUS CROSS-EXAMINERS

charges made by your church and by the committee of
your church, made no impression on you ? "

Mr. Beecher (shortly). " Not the slightest"

At this juncture Mr. Thomas G. Sherman, Beecher's
personal counsel, jumped to his client's aid, and remarked
that it was a singular coincidence that when counsel had
not the record before him, he never quoted correctly.

Mr. Fullerton (addressing the court impressively).
" When Mr. Sherman is not impertinent, he is nothing
in this case."

Judge Neilson (to the rescue). " Probably counsel
thought — "

Mr. Fullerton (interrupting). "What Mr. Sherman
thinks^ your Honor, cannot possibly be of sufficient
importance to take up the time either of the court or
opposing counsel."

" Are you in the habit of having your sermons pub-
lished?" continued Mr. Fullerton. Mr. Beecher ac-
knowledged that he was, and also that he had preached
a sermon on " The Nobility of Confession."

Mr. Sherman (sarcastically). " I hope Mr. Fullerton
is not going to preach us a sermon."

Mr. Fullerton. " I would do so if I thought I could
convert brother Sherman."

Mr. Beecher (quietly). " I will be happy to give you
the use of my pulpit"

Mr. Fullerton (laughing). "Brother Sherman is the
only audience I shall want"

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THE ART OF CROSS-EXAMINATION

Mr. Beecher (sarcastically). " Perhaps he is the only
audience you can get."

Mr. Fullerton. " If I succeed in converting brother
Sherman, I will consider my work as a Christian minister
complete."

Mr. FuUerton then read a passage from the sermon,
the effect of which was that if a person commits a great
sin, and the exposure of it would cause misery, such a
person would not be justified in confessing it, merely to
relieve his own conscience. Mr. Beecher admitted that
he still considered that " sound doctrine."

At this point Mr. Fullerton turned to the court, and
•pointing to the clock, said, " Nothing comes after the
sermon, I believe, but the benediction." His Honor
took the hint, and the proceedings adjourned.^

In this same trial Hon. William M. Evarts, as leading
counsel for Mr. Beecher, heightened his already inter-
national reputation as an advocate. It was Mr. Evarts's
versatility in the Beecher case that occasioned so much
comment. Whether he was examining in chief or on
cross, in the discussion of points of evidence, or in the
summing up, he displayed equally his masterly talents.
His cross-examination of Theodore Tilton was a master-
piece. His speeches in court were clear, calm, and logi-
cal. Mr. Evarts was not only a great lawyer, but an
orator and statesman of the highest distinction. He has

^ Extracts from the daily press accounts of the proceedings of one of the
thirty days of the trial, as reported in " Modern Jury Trials," Donovan.

158

SOME FAMOUS CROSS-EXAMINERS

been called "the Prince of the American Bar." He
was a gentleman of high scholarship and fine literary
tastes. His manner in the trial of a case has been
described by some one as "all head, nose, voice, and
forefinger." He was five feet seven inches tall, thin and
slender, " with a face like parchment."

Mr. Joseph H. Choate once told me he considered
that he owed his own success in court to the nine years
during which he acted as Mr. Evarts's junior in the trial
of cases. No one but Mr. Choate himself would have
said this. His transcendent genius as an advocate could
not have been acquired from any tutelage under Mr.
Evarts. When Mr. Choate accepted his appointment as
Ambassador to the Court of St. James, he retired from
the practice of the law ; and it is therefore permissible to
comment upon his marvellous talents as a jury lawyer.
He was not only easily the leading trial lawyer of the
New York Bar, but was by many thought to be the
representative lawyer of the American Bar. Surely no
man of his time was more successful in winning juries.
His career was one uninterrupted success. Not that he
shone especially in any particular one of the duties of the
trial lawyer, but he was preeminent in the quality of his
humor and keenness of satire. His whole conduct of a
case, his treatment of witnesses, of the court, of opposing
counsel, and especially of the jury, were so irresistibly
fascinating and winning that he carried everything before
him. One would emerge from a three weeks' contest

159

THE ART OF CROSS-EXAMINATION

with Choate in a state almost of mental exhilaration,
despite the jury's verdict.

It was not so with the late Edward C. James ; a contest
with him meant great mental and physical fatigue for
his opponent. James was ponderous and indefatigable.
His cross-examinations were labored in the extreme.
His manner as an examiner was dignified and forceful,
his mind always alert and centred on the subject before
him; but he had none of Mr. Choate's fascination or
brilliancy. He was dogged, determined, heavy. He
would pound at you incessantly, but seldom reached the
mark. He literally wore out his opponent^ and could
never realize that he was on the wrong side of a case
until the foreman of the jury told him so. Even then
he would want the jury polled to see if there was not
some mistake. James never smiled except in triumph
and when his opponent frowned. When Mr. Choate
smiled, you couldn't help smiling with him. During the
last ten years of his life James was found on one side or
the other of most of the important cases that were tried.
He owed his success to his industrious and indefatigable
qualities as a fighter ; not, I think, to his art.

James T. Brady was called " the Curran of the New
York Bar." His success was almost entirely due to his
courtesy and the marvellous skill of his cross-examina-
tions. He had a serene, captivating manner in court,
and was one of the foremost orators of his time. He
has the proud record of having defended fifty men on

i6o

SOME FAMOUS CROSS-EXAMINERS

trial for their lives, and of saving every one of them from
the gallows.

On the other hand, William A. Beech, " the Hamlet
of the American Bar," was a poor cross-examiner. He
treated all his witnesses alike. He was methodical, but
of a domineering manner. He was slow to attune him-
self to an unexpected turn in a case he might be con-
ducting. He lost many cases and was not fitted to
conduct a desperate one. It was as a court orator that
he was preeminent. His speech in the Beecher case
alone would have made him a reputation as a consum-
mate orator. His vocabulary was surprisingly rich and
his voice wonderfully winning.

It is said of James W. Gerard, the elder, that " he ob-
tained the greatest number of verdicts against evidence
of any one who ever practised at the New York Bar. He
was full of expedients and possessed extraordinary tact.
In his profound knowledge of human nature and his
ready adaptation, in the conduct of trials, to the pecu-
liarities, caprices, and whims of the different juries before
whom he appeared he was almost without a rival. . . .
Any one who witnessed the telling hits made by Mr.
Gerard on cross-examination, and the sensational inci-
dents sprung by him upon his opponents, the court, and
the jury, would have thought that he acted upon the
inspiration of the moment — that all he did and all he
said was impromptu. In fact, Mr, Gerard made thorough
preparation for trial. Generally his hits in cross-exami-
L i6i

THE ART OF CROSS-EXAMINATION

nation were the result of previous preparation. He
made briefs for cross-examination. To a large extent his
flashes of wit and his extraordinary and grotesque humor
were well pondered over and studied up beforehand." ^

Justice Miller said of Roscoe Conkling that " he was
one of the greatest men intellectually of his time/' He
was more than fifty years of age when he abandoned his
arduous public service at Washington, and opened an
office in New York City. During his six years at the
New York Bar, such was his success, that he is reputed
to have accumulated, for a lawyer, a very large fortune.
He constituted himself a barrister and adopted the plan
of acting only as counsel. He was fluent and eloquent
of speech, most thorough in the preparation of his cases,
and an accomplished cross-examiner. Despite his public
career, he said of himself, " My proper place is to be be-
fore twelve men in the box." Conkling used to study
for his cross-examinations, in important cases, with the
most painstaking minuteness. In the trial of the Rev.
Henry Burge for murder, Conkling saw that the case
was likely to turn upon the cross-examination of Dr.
Swinburne, who had performed the autopsy. The
charge of the prosecution was that Mrs. Burge had
been strangled by her husband, who had then cut her
throat. In order to disprove this on cross-examination,
Mr. Conkling procured a body for dissection and had
dissected, in his presence, the parts of the body that he

* " Extraordinary Cases," Henry Lauran Clinton.
162

SOME FAMOUS CROSS-EXAMINERS

wished to study. As the result of Dr. Swinburne's cross-
examination at the trial, the presiding judge felt com-
pelled to declare the evidence so entirely untrustworthy
that he would decline to submit it to the jury and directed
that the prisoner be set at liberty.

This studious preparation for cross-examination was one
of the secrets of the success of Benjamin F. Butler. He
was once known to have spent days in examining all parts
of a steam-engine, and even learning to drive one himself,
in order to cross-examine some witnesses in an impor-
tant case in which he had been retained. At another
time Butler spent a week in the repair shop of a rail-
road, part of the time with coat oflF and hammer in hand,
ascertaining the capabilities of iron to resist pressure —
a point on which his case turned. To use his own lan-
guage : " A lawyer who sits in his office and prepares his
cases only by the statements of those who are brought
to him, will be very likely to be beaten. A lawyer in
full practice, who carefully prepares his cases, must study
almost every variety of business and many of the
sciences." A pleasant humor and a lively wit, coupled
with wonderful thoroughness and acuteness, were But-
ler's leading characteristics. He was not a great lawyer,
nor even a great advocate like Rufus Choate, and yet
he would frequently defeat Choate. His cross-examina-
tion was his chief weapon. Here he was fertile in re-
source and stratagem to a degree attained by few others.
Choate had mastered all the little tricks of the trial

163

THE ART OF CROSS-EXAMINATION

lawyer, but he attained also to the grander thoughts
and the logical powers of the really great advocate.
Butler's success depended upon zeal, combined with
shrewdness and not overconscientious trickery.

In his autobiography, Butler gives several examples
of what he was pleased to call his legerdemain, and to
believe were illustrations of his skill as a cross-examiner.
They are quoted from " Butler's Book," but are not re-
printed as illustrations of the subtler forms of cross-
examination, but rather as indicative of the tricks to
which Butler owed much of his success before country
juries.

" When I was quite a young man I was called upon to
defend a man for homicide. He and his associate had
been engaged in a quarrel which proceeded to blows
and at last to stones. My client, with a sharp stone,
struck the deceased in the head on that part usually
called the temple. The man went and sat down on the
curbstone, the blood streaming from his face, and shortly
afterward fell over dead.

" The theory of the government was that he died from
the wound in the temporal artery. My theory was that
the man died of apoplexy, and that if he had bled more
from the temporal artery, he might have been saved —
a wide enough difference in the theories of the cause of
death.

" Of course to be enabled to carry out my proposition
I must know all about the temporal artery, — its location,

164

SOME FAMOUS CROSS-EXAMINERS

its functions, its capabilities to allow the blood to pass
through it, and in how short a time a man could bleed
to death through the temporal artery ; also, how far ex-
citement in a body stirred almost to frenzy in an embit-
tered conflict, and largely under the influence of liquor
on a hot day, would tend to produce apoplexy. I was
relieved on these two points in my subject, but relied
wholly upon the testimony of k surgeon that the man
bled to death from the cut on the temporal artery from
a stone in the hand of my client. That surgeon was
one of those whom we sometimes see on the stand, who
think that what they don't know on the subject of their
profession is not worth knowing. He testified positively
and distinctly that there was and could be no other cause
for death except the bleeding from the temporal artery,
and he described the action of the bleeding and the
amount of blood discharged.

" Upon all these questions I had thoroughly prepared
myself.

" Mr. Butler. * Doctor, you have talked a great deal
about the temporal artery ; now will you please describe
it and its functions ? I suppose the temporal artery is so
called because it supplies the flesh on the outside of the
skull, especially that part we call the temples, with blood.'

" Witness. * Yes ; that is so.'

" Mr. Butler. * Very well. Where does the temporal
artery take its rise in the system ? Is it at the heart ? '

" Witness. * No, the aorta is the only artery leaving the

i6s

THE ART OF CROSS-EXAMINATION

heart which carries blood toward the head. Branches
from it carry the blood up through the opening into the
skull at the neck, and the temporal artery branches from
one of these.'

" Mr. Butler. * Doctor, where does it branch oflF from
it ? on the inside or the outside of the skull ? '

" Witness. 'On the inside.'

^'Mr. Butler. * Does it have anything to do inside with
supplying the brain ? '

''Witness. 'No.'

" Mr. Butler. * Well, doctor, how does it get outside to
supply the head and temples ? '

" Witness. * Oh, it passes out through its appropriate
opening in the skull.'

" Mr. Butler. * Is that through the eyes ? '

''Witness. 'No.'

"Mr. Butler. * The ears?'

"Witness. *No.'

" Mr. Butler. ' It would be inconvenient to go through
the mouth, would it not, doctor ? '

"Here I produced from my green bag a skull. *I
cannot find any opening on this skull which I think is
appropriate to the temporal artery. Will you please
point out the appropriate opening through which the
temporal artery passes from the inside to the outside of
the skull?'

" He was utterly unable so to do.

" Mr. Butler. ' Doctor, I don't think I will trouble you

i66

SOME FAMOUS CROSS-EXAMINERS

any further; you can step down.' He did so, and my
client's life was saved on that point.

" The temporal artery doesn't go inside the skull at all.

" I had a young client who was on a railroad car when
it was derailed by a broken switch. The car ran at con-
siderable speed over the cross-ties for some distance, and
my client was thrown up and down with great violence
on his seat. After the accident, when he recovered from
the bruising, it was found that his nervous system had
been wholly shattered, and that he could not control his
nerves in the slightest degree by any act of his will.
When the case came to trial, the production of the pin
by which the position of the switch was controlled, two-
thirds worn away and broken oflF, settled the liability of
the road for any damages that occurred from that cause,
and the case resolved itself into a question of the amount
of damages only. My claim was that my client's condi-
tion was an incurable one, arising from the injury to the
spinal cord. The claim put forward on behalf of the
railroad was that it was simply nervousness, which
probably would disappear in a short time. The sur-
geon who appeared for the road claimed the privilege
of examining my client personally before he should
testify. I did not care to object to that, and the doctor
who was my witness and the railroad surgeon went into
the consultation room together and had a full examina-
tion in which I took no part, having looked into that
matter before.

167

THE ART OF CROSS-EXAMINATION

" After some substantially immaterial matters on the
part of the defence, the surgeon was called and was quali-
fied as a witness. He testified that he was a man of
great position in his profession. Of course in that I
was not interested, for I knew he could qualify himself
as an expert. In his direct examination he spent a good
deal of the time in giving a very learned and somewhat
technical description of the condition of my client. He
admitted that my client's nervous system was very much
shattered, but he also stated that it would probably be
only temporary. Of all this I took little notice ; for, to
tell the truth, I had been up quite late the night before
and in the warm court room felt a little sleepy. But the
counsel for the road put this question to him : —

" * Doctor, to what do you attribute this condition of
the plaintiff which you describe ? '

" ' Hysteria, sir ; he is hysterical.'

" That waked me up. I said, * Doctor, did I under-
stand — I was not paying proper attention — to what
did you attribute this nervous condition of my client ? '

" * Hysteria, sir.'

"I subsided, and the examination went on until it
came my turn to cross-examine.

" Mr. Butler. * Do I understand that you think this
condition of my client wholly hysterical?'

" Witness. * Yes, sir ; undoubtedly.'

'""Mr. Butler. * And therefore won't last long ? '

" Witness. * No, sir ; not likely to.'

i68

SOME FAMOUS CROSS-EXAMINERS

^^ Mr. Butler. 'Well, doctor, let us see; is not the
disease called hysteria and its effects hysterics; and
isn't it true that hysteria, hysterics, hysterical, all come
from the Greek word varipa ? '

''Witness. 'It may be.'

""Mr. Butler. 'Don't say it may, doctor; isn't it?
Isn't an exact translation of the Greek word wripa the
English word " womb " ? '

" Witness. * You are right, sir/

" Mr. Butler. * Well, doctor, this morning when you
examined this young man here,' pointing to my client,
' did you find that he had a womb ? I was not aware of
it before, but I will have him examined over again and see
if I can find it That is all, doctor ; you may step down.' "

Robert IngersoU took part in numerous noted law-
suits in all parts of the country. But he was almost
helpless in court without a competent junior. He was a
born orator if ever there was one. Henry Ward Beecher
regarded him as " the most brilliant speaker of the Eng-
lish tongue in any land on the globe." He was not a pro-
found lawyer, however, and hardly the equal of the most
mediocre trial lawyer in the examination of witnesses.
Of the art of cross-examining witnesses he knew prac-
tically nothing. His definition of a lawyer, to use his
own words, was " a sort of intellectual strumpet." " My
ideal of a great lawyer," he once wrote, " is that great
English attorney who accumulated a fortune of a million
pounds, and left it all in his will to make a home for

169

THE ART OF CROSS-EXAMINATION

idiots, declaring that he wanted to give it back to the
people from whom he took it."

Judge Walter H. Sanborn relates a conversation he
had With Judge Miller of the United States Court about
IngersolL " Just after Colonel IngersoU had concluded
an argument before Mr. Justice Miller, while on Circuit
I came into the court and remarked to Judge Miller that
I wished I had got there a little sooner, as I had never
heard Colonel IngersoU make a legal argument" —
" Well," said Judge Miller, " you never will."^

IngersoU's genius lay in other directions. Who but
IngersoU could have written the following : —
• " A little whUe ago I stood by the grave of the old
Napoleon — a magnificent tomb of gilt and gold, fit al-
most for a dead deity, and gazed upon the sarcophagus
of black marble, where rest at last the ashes of that rest-
less man. I leaned over the balustrade, and thought
about the career of the greatest soldier of the modem
world. I saw him walking upon the banks of the Seine,
contemplating suicide ; I saw him at Toulon ; I saw him
putting down the mob in the streets of Paris ; I saw him
at the head of the army in Italy ; I saw him crossing the
bridge of Lodi, with the tricolor in his hand ; I saw him
in Egypt, in the shadows of the Pyramids; I saw him
conquer the Alps, and mingle the eagles of France with
the eagles of the crags ; I saw him at Marengo, at Ulm,
and at Austerlitz ; I saw him in Russia, where the infan-

1 " Life Sketches of Eminent Lawyers," Gilbert J. Clark.
170

SOME FAMOUS CROSS-EXAMINERS

try of the snow and the cavalry of the wild blast scat-
tered his legions like winter's withered leaves. I saw
him at Leipsic, in defeat and disaster; driven by a mill-
ion bayonets back upon Paris; clutched like a wild
beast ; banished to Elba. I saw him escape and retake
an empire by the force of his genius. I saw him upon
the frightful field of Waterloo, where chance and fate
combined to wreck the fortunes of their former king.
And I saw him at St. Helena, with his hands crossed
behind him, gazing out upon the sad and solemn sea.
I thought of the orphans and widows he had made, of
the tears that had been shed for his glory, and of the
only woman who had ever loved him, pushed from his
heart by the cold hand of ambition. And I said I would
rather have been a French peasant, and worn wooden
shoes ; I would rather have lived in a hut, with a vine
growing over the door, and the grapes growing purple in
the kisses of the autumn sun. I would rather have been
that poor peasant, with my loving wife by my side, knit-
ting as the day died out of the sky, with my children
upon my knees, and their .arms about me. I would
rather have been that man, and gone down to the tongue-
less silence of the dreamless dust, than to have been that
imperial impersonation of force and murder, known as
Napoleon the Great."

171

CHAPTER XI

THE CROSS-EXAMINATION OF RICHARD PIGOTT BY SIR
CHARLES RUSSELL BEFORE THE PARNELL COMMISSION

CHAPTER XI

THE CROSS-EXAMINATION OF RICHARD PIGOTT BY SIR CHARLES
RUSSELL BEFORE THE PARNELL COMMISSION

The modem method of studying any subject, or ac-
quiring any art, is the inductive method. This is
illustrated in our law schools, where to a large extent
actual cases are studied, to get at the principles of law
instead of acquiring those principles solely through the
a priori method of the study of text-books.

As already indicated, this method is also the only way
to become a master of the art of cross-examination, and,
in addition to actual personal experience, it is important
to study the methods of great cross-examiners, or those
whose extended experience makes them safe guides to
follow.

Hence, the writer believes it would be decidedly help-
ful to the students of the art of cross-examination to
have placed before them, in a convenient and somewhat
condensed form, some good illustrations of the methods
of well-known cross-examiners as exhibited in actual
practice, in the cross-examination of important witnesses
in famous trials.

175

THE ART OF CROSS-EXAMINATION

For these reasons, and the further fact that such ex-
amples are interesting as a study of human nature, I
have in the following pages introduced the cross-exami-
nation of some important witnesses in several well-known
cases.

Probably one of the most dramatic and successful of
the more celebrated cross-examinations in the history
of the English courts is Russell's cross-examination of
Pigott — the chief witness in the investigation growing
out of the attack upon Charles S. Pamell and sixty-five
Irish members of Parliament, by name, for belonging to
a lawless and even murderous organization, whose aim
was the overthrow of English rule.

The principal charge against Parnell, and the only one
that interests us in the cross-examination of the witness
Pigott, was the writing of a letter by Pamell which the
Times claimed to have obtained and published in
facsimile, in which he excused the murderer of Lord
Frederick Cavendish, Chief Secretary for Ireland, and of
Mr. Burke, Under Secretary, in Phoenix Park, Dublin,
on May 6, 1882. One particular sentence in the letter
read, " I cannot refuse to admit that Burke got no more
than his deserts."

The publication of this letter naturally made a great
stir in Parliament and in the country at large. Parnell
stated in the House of Commons that the letter was a
forgery, and later asked for the appointment of a select
committee to inquire whether the facsimile letter was

176

CROSS-EXAMINATION OF RICHARD PIGOTT

a forgery. The Government refused this request, but
appointed a special committee, composed of three judges,
to investigate all the charges made by the Times.

The writer is indebted again to Russell's biographer,
Mr. O'Brien, for the details of this celebrated case.
Seldom has any legal controversy been so graphically
described as this one. One seems to be living with
Russell, and indeed with Mr. O'Brien himself, through-
out those eventful months. We must content ourselves,
however, with a reproduction of the cross-examination
of Pigott as it comes from the stenographer's minutes
of the trial, enlightened by the pen of Russell's facile
biographer.

Mr. O'Brien speaks of it as " the event in the life of
Russell — the defence of Pamell." In order to under-
take this defence, Russell returned to the Times the
retainer he had enjoyed from them for many previous
years. It was known that the Times had bought the
letter from Mr. Houston, the secretary of the Irish
Loyal and Patriotic Union, and that Mr. Houston had
bought it from Pigott. But how did Pigott come by
it? That was the question of the hour, and people
looked forward to the day when Pigott should go into
the box to tell his story, and when Sir Charles Russell
should rise to cross-examine him. Mr. O'Brien writes:
" Pigott's evidence in chief, so far as the letter was con-
cerned, came practically to this : he had been employed
by the Irish Loyal and Patriotic Union to hunt up
M 177

THE ART OF CROSS-EXAMINATION

documents which might incriminate Parnell, and he had
bought the facsimile letter, with other letters, in Paris
from an agent of the Clan*na-Gael, who had no objection
to injuring Parnell for a valuable consideration, . . .

" During the whole week or more Russell had looked
pale, worn, anxious, nervous, distressed. He was impa-
tient, irritable, at times disagreeable. Even at luncheon,
half an hour before, he seemed to be thoroughly out of
sorts, and gave you the idea rather of a young junior
with his first brief than of the most formidable advocate
at the Bar. Now all was changed. As he stood facing
Pigott, he was a picture of calmness, self-possession,
strength; there was no sign of impatience or irritabil-
ity ; not a trace of illness, anxiety, or care ; a slight tinge
of color lighted up the face, the ey^s sparkled, and a
pleasant smile played about the mouth. The whole
bearing and manner of the man, as he proudly turned
his head toward the box, showed courage, resolution,
confidence. Addressing the witness with much courtesy,
while a profound silence fell upon the crowded court, he
began: 'Mr. Pigott, would you bfe good enough, with
my Lords' permission, to write some words on that sheet
of paper for me ? Perhaps ycju will sit down in order to
do so ? * A sheet of paper wai then handed to the wit-
ness. I thought he looked for a moment surprised.
This clearly was not the beginning that he had ex-
pected. He hesitated, seemed confused. Perhaps Rus-
sell observed it At all events he added quickly: —

178

CROSS-EXAMINATION OF RICHARD PIGOTT

" * Would you like to sit down ? *

" * Oh, no, thanks,' replied Pigott, a little flurried.

" The President. ' Well, but I think it is better that
you should sit down. Here is a table upon which you
can write in the ordinary way — the course you always
pursue.'

"Pigott sat down and seemed to recover his equi-
librium.

" RusselL * Will you write the word " livelihood " ? '

" Pigott wrote.

''RusselL 'Just leave a space. Will you write the
word "likelihood"?'

" Pigott wrote.

''RusselL *Will you write your own name? Will
you write the word " proselytism," and finally (I think
I will not trouble you at present with any more) ** Pat-
rick Egan " and " P. Egan " ? '

" He uttered these last words with emphasis, as if they
imported something of great importance. Then, when
Pigott had written, he added carelessly, * There is one
word I had forgotten. Lower down, please, leaving
spaces, write the word "hesitancy."' Then, as Pigott
was about to write, he added, as if this were the vital
point, 'with a small "h."' Pigott wrote and looked
relieved.

" RusselL * Will you kindly give me the sheet ? '

" Pigott took up a bit of blotting paper to lay on
the sheet, when Russell, with a sharp ring in his voice,

179

THE ART OF CROSS-EXAMINATION

said rapidly, * Don't blot it, please.' It seemed to me
that the sharp ring in Russell's voice startled Pigott
While writing he had looked composed; now again he
looked flurried, and nervously handed back the sheet.
The attorney general looked keenly at it, and then said,
with the air of a man who had himself scored, * My
Lords, I suggest that had better be photographed, if
your Lordships see no objection.'

''Russell (turning sharply toward the attorney general,
and with an angry glance and an Ulster accent, which
sometimes broke out when he felt irritated). * Do not
interrupt my cross-examination with that request'

" Little did the attorney general at that moment know
that, in the ten minutes or quarter of an hour which it
had taken to ask these questions, Russell had gained a
decisive advantage. Pigott had in one of his letters to
Pat Egan spelt ' hesitancy ' thus, ' hesitency.' In one of
the incriminatory letters * hesitancy ' was so spelt ; and
in the sheet now handed back to Russell, Pigott had
written ' hesitency,' too. In fact it was Pigott's spelling
of this word that had put the Irish members on his
scent. Pat Egan, seeing the word spelt with an * e ' in
one of the incriminatory letters, had written to Parnell,
saying in effect, ' Pigott is the forger. In the letter
ascribed to you " hesitancy " is spelt " hesitency." That
is the way Pigott always spells the word.' These things
were not dreamt of in the philosophy of the attorney
general when he interrupted Russell's cross-examination

1 80

CROSS-EXAMINATION OF RICHARD PIGOTT

with the request that the sheet *had better be photo-
graphed.' So closed the first round of the combat

" Russell went on in his former courteous manner, and
Pigott, who had now completely recovered confidence,
looked once more like a man determined to stand to his
guns.

" Russell, having disposed of some preliminary points
at length (and after he had been perhaps about half an
hour on his feet), closed with the witness.

" Russell. * The first publication of the articles " Par-
nellism and Crime " was on the 7th March, 1887 ? '

" Pigott (sturdily). ' I do not know.'

" Russell (amiably). * Well, you may assume that is the
date.'

" Pigott (carelessly). * I suppose so.'

''Russell. *And you were aware of the intended
publication of the correspondence, the incriminatory
letters ? '

" Pigott (firmly). * No, I was not at all aware of it.'

" Russell (sharply, and with the Ulster ring in his
.voice). 'What?'

" Pigott (boldly). * No, certainly not'

********

" Russell. ' Were you not aware that there were grave
charges to be made against Mr. Parnell and the leading
members of the Land League ? '

" Pigott (positively). * I was not aware of it until they
actually commenced.'

181

THE ART OF CROSS-EXAMINATION

''Russell (again with the Ulster ring). ' What ? '

" Pigott (defiantly). * I was not aware of it until the
publication actually commenced'

" Russell (pausing, and looking straight at the witness).
' Do you swear that ? '

" Pigott (aggressively). * I do.'

" Russell (making a gesture with both hands, and look-
ing toward the bench). * Very good, there is no mistake
about that'

" Then there was a pause ; Russell placed his hands
beneath the shelf in front of him, and drew from it some
papers — Pigott, the attorney general, the judges, every
one in court looking intently at him the while. There
was not a breath, not a movement. I think it was the
most dramatic scene in the whole cross-examination,
abounding as it did in dramatic scenes. Then, handing
Pigott a letter, Russell said calmly : —

" ' Is that your letter ? Do not trouble to read it ; tell
me if it is your letter.'

" Pigott took the letter, and held it close to his eyes
as if reading it

" Russell (sharply). * Do not trouble to read it'

''Pigott. 'Yes, I think it is.'

" Russell (with a frown). * Have you any doubt of it ? *

"Pigott. 'No.'

"Russell (addressing the judges). 'My Lords, it is
from Anderton's Hotel, and it is addressed by the wit-
ness to Archbishop Walsh. The date, my Lords, is the

182

CROSS-EXAMINATION OF RICHARD PIGOTT

4th of March^ three days before the first appearance of
the first of the articles, " Parhellism and Crime." '

** He then read : —

" ' Private and confidential.'

"*My Lord: — The importance of the matter about
which I write will doubtless excuse this intrusion on
your Grace's attention. Briefly, I wish to say that I
have been made aware of the details of certain proceed-
ings that are in preparation with the object of destroying
the influence of the Parnellite party in Parliament'

" Having read this much Russell turned to Pigott and
said : —

"*What were the certain proceedings that were in
preparation ? '

''Pigott * I do not recollect.'

" Russell (resolutely). ' Turn to my Lords and repeat
the answer.'

''Pigott. ' I do not recollect'

"Russell. *You swear that — writing on the 4th of
March, less than two years ago ? '

"Pigott. *Yes.'

" Russell. ' You do not know what that referred to ? '

"Pigott. * I do not really.'

" Russell. ' May I suggest to you ? '

" Pigott. ' Yes, you may.'

"RusselL *Did it refer to the incriminatory letters
among other things ? '

" Pigott. * Oh, at that jiate ? No, the letters had not

183

THE ART OF CROSS-EXAMINATION

been obtained, I think, at that date, had they, two years
ago?'

" Russell (quietly and courteously). * I do not want to
confuse you at all, Mr. Pigott.'

" Pigott ' Would you mind giving me the date of
that letter?'

''Russell * The 4th of March.'

''Pigott ' The 4th of March.'

" Russell ' Is it your impression that the letters had
not been obtained at that date?'

" Pigott. * Oh, yes, some of the letters had been ob-
tained before that date.'

''Russell. 'Then, reminding you that some of the
letters had been obtained before that date, did that pas-
sage that I have read to you in that letter refer to these
letters among other things ? '

" Pigott ' No, I rather fancy they had reference to
the forthcoming articles in the Times'

" Russell (glancing keenly at the witness). ' I thought
you told us you did not know anything about the forth-
coming articles.'

" Pigott (looking confused). ' Yes, I did. I find now
I am mistaken — that I must have heard something
about them.'

" Russell (severely). ' Then try not to make the same
mistake again, Mr. Pigott. " Now," you go on (continu-
ing to read from Pigott's letter to the archbishop), " I
cannot enter more fully into details than to state that the

184

CROSS-EXAMINATION OF RICHARD PIGOTT

proceedings referred to consist in the publication of cer-
tain statements purporting to prove the complicity of
Mr. Parnell himself, and some of his supporters, with
murders and outrages in Ireland, to be followed, in all
probability, by the institution of criminal proceedings
against these parties by the Government." '

" Having finished the reading, Russell laid down the
letter and said (turning toward the witness), ' Who told
you that ? '

" Pigott. * I have no idea.'

^^ Russell (striking the paper energetically w;th his
fingers). * But that refers, among other things, to the
incriminatory letters.'

''Pigott. ' I do not recollect that it did.'

'' Russell {wiih energy). 'Do you swear that it did not?'

" Pigott. ' I will not swear that it did not'

" Russell. * Do you think- it did ? '

''Pigott. ' No, I do not think it did.'

" Russell. ' Do you think that these letters, if genuine,
would prove or would not prove Parnell's complicity in
crime ? '

" Pigott. ' I thought they would be very likely to
prove it.'

" Russell. ' Now, reminding you of that opinion, I ask
you whether you did not intend to refer — not solely, I
suggest, but among other things — to the letters as being
the matter which would prove complicity or purport to
prove complicity ? '

185

THE ART OF CROSS-EXAMINATION

" PigotL * Yes, I may have had that in my mind.'

" RusselL ' You could have had hardly any doubt that
you had ? '

^"^ Pigott * I suppose so.'

" RusselL * You suppose you may have had ? '

''Pigott *Yes;

"^RusselL 'There is the letter and the statement
(reading), " Your Grace may be assured that I speak with
full knowledge, and am in a position to prove, beyond all
doubt and question, the truth of what I say." Was that
true?'

''PigotL ' It could hardly be true.'

" RusselL ' Then did you write that which was false ? '

" PigotL * I suppose it was in order to give strength
to what I said. I do not think it was warranted by what
I knew.'

" RusselL * You added the untrue statement in order
to add strength to what you said ? '

''PigotL 'Yes.'

" RusselL ' You believe these letters to be genuine ? '

"PigotL *Ido.'

"RusselL 'And did at this time?'

"PigotL 'Yes.'

" ^«^j^// (reading). '"And I will further assure your
Grace that I am also able to point out how these designs
may be successfully combated and finally defeated." How,
if these documents were genuine documents, and you be-
lieved them to be such, how were you able to assure his

1 86

CROSS-EXAMINATION OF RICHARD PIGOTT

Grace that you were able to point out how the design
might be successfully combated and finally defeated ? '

" Ptgott. * Well, as I say, I had not the letters actually
in my mind at that time. So far as I can gather, I do
not recollect the letter to Archbishop Walsh at all. My
memory is really a blank on the circumstance.'

" Russell. ' You told me a moment ago, after great
deliberation and consideration, you had both the in-
criminatory letters and the letter to Archbishop Walsh
in your mind.'

" Ptgott ' I said it was probable I did ; but I say the
thing has completely &ded out of my mind.'

" Russell (resolutely). ' I must press you. Assuming
the letters to be genuine, what were the means by which
you were able to assure his Grace that you could point
out how the design might be successfully combated and
finally defeated ? '

" Ptgott (helplessly). * I cannot conceive really.'

** Russell * Oh, try. You must really try.'

" Ptgott (in manifest confusion and distress). ' I cannot'

" Russell (looking fixedly at the witness). * Try.'

" Ptgott. ' I cannot.'

''Russell 'Try.'

" Ptgott. ' It is no use.'

" Russell (emphatically). * May I take it, then, your
answer to my Lords is that you cannot give any ex-
planation ? '

" Ptgott. * I really cannot absolutely.'

187

THE ART OF CROSS-EXAMINATION

" Russell (reading). * " I assure your Grace that I have
no other motive except to respectfully suggest that your
Grace would communicate the substance to some one
or other of the parties concerned, to whom I could fur-
nish details, exhibit proofs, and suggest how the coming
blow may be effectually met." What do you say to
that, Mr. Pigott?'

" PigotL * I have nothing to say except that I do not
recollect anything about it absolutely.'
" Russell. * What was the coming blow ? '
" PigotL ' I suppose the coming publication.'
^^ Russell * How was it to be effectively met? '
" PigotL ' I have not the slightest idea.*
" Russell * Assuming the letters to be genuine, does
it not even now occur to your mind how it could be
effectively met ? '
''PigotL 'No.'

" Pigott now looked like a man, after the sixth round
in a prize fight, who had been knocked down in every
round. But Russell showed him no mercy. I shall
take another extract.

" Russell. ' Whatever the charges in " Parnellism and
Crime," including the letters, were, did you believe them
to be true or not? '

" PigotL ' How can I say that when I say I do not
know what the charges were ? I say I do not recollect

1 88

CROSS-EXAxMINATION OF RICHARD PIGOTT

that letter to the archbishop at all, or any of the circum-
stances it refers to/

" Russell. * First of all you knew this : that you pro-
cured and paid for a number of letters ? '

''PigotL 'Yes;

" Russell. * Which, if genuine, you have already told
me, would gravely implicate the parties from whom these
were supposed to come. *

" Pigott ' Yes, gravely implicate.'

^'Russell. 'You would regard that, I suppose, as a
serious charge ? '

''Pigott. *Yes.'

" RusselL ' Did you believe that charge to be true or
false?'

" Pigott. ' I believed that charge to be true.'

" Russell. * You believed that to be true ? '

''Pigott. *Ido;

" Russell. ' Now I will read this passage [from Pigott's
letter to the archbishop], " I need hardly add that, did
I consider the parties really guilty of the things charged
against them, I should not dream of suggesting that
your Grace should take part in an effort to shield them ;
I only wish to impress on your Grace that the evi-
dence is apparently convincing, and would probably
be sufficient to secure conviction if submitted to
an English jury." What do you say to that, Mr.
Pigott?'

" Pigott (bewildered). * I say nothing, except that I am

189

THE ART OF CROSS-EXAMINATION

sure I could not have had the letters in my mind when I
said that, because I do not think the letters conveyed a
sufficiently serious charge to cause me to write in that
way.'

" Russell. * But you know that was the only part of
the charge, so far as you have yet told us, that you had
anything to do in getting up ? '

" Pigott. ' Yes, that is what I say ; I must have had
something else in my mind which I cannot at present
recollect — that I must have had other charges.'

''RusselL 'What charges?'

" Pigott. ' I do not know. That is what I cannot tell
you.'

" Russell. * Well, let me remind you that that particu-
lar part of the charges — the incriminatory letters —
were letters that you yourself knew all about'

" Pigott. * Yes, of course.'

" Russell (reading from another letter of Pigott's to
the archbishop). * " I was somewhat disappointed in not
having a line from your Grace, as I ventured to expect
I might have been so far honored. I can assure your
Grace that I have no other motive in writing save to
avert, if possible, a great danger to people with whom
your Grace is known to be in strong sympathy. At the
same time, should your Grace not desire to interfere in
the matter, or should you consider that they would refuse
me a hearing, I am well content, having acquitted myself
of what I conceived to be my duty in the circumstances.

190

(
CROSS-EXAMINATION OF RICHARD PIGOTT

I will not further trouble your Grace save to again beg
that you will not allow my name to transpire, seeing that
to do so would interfere injuriously with my prospects,
without any compensating advantage to any one, I
make the request all the more confidently because I have
had no part in what is being done to the prejudice of
the Parnellite party, though I was enabled to become
acquainted with all the details." '

" Pigott (with a look of confusion and alarm). * Yes.'

" Russell. * What do you say to that ? '

"^ Pigott. *That it appears to me clearly that I had
not the letters in my mind.'

" Russell. * Then if it appears to 3^u clearly that you
had not the letters in your mind, what had you in your
mind ? '

^^ Pigott. *It must have been something far more
serious.'

''Russell. * What was it?'

" Pigott (helplessly, great beads of perspiration stand-
ing out on his forehead and trickling down his face). * I
cannot tell you. I have no idea.'

" Russell. * It must have been something far more
serious than the letters ? '

" Pigott (vacantly). ' Far more serious.'

" Russell (briskly). ' Can you give my Lords any clew
of the most indirect kind to what it was } '

**-P^^^// (in despair). * I cannot'

" Russell. * Or from whom you heard it ? '

191

THE ART OF CROSS-EXAMIMATION

''PigotL *No;

" Russell. * Or when you heard it ? '

''Pigott 'Or when I heard it/

" Russell. * Or where you heard it ? '

" Pigott. * Or where I heard it'

" Russell. * Have you ever mentioned this fearful mat-
ter — whatever it is — to anybody ? '

''Pigott. 'No;

" Russell. ' Still locked up, hermetically sealed in your
own bosom ?*'

" Pigott. * No, because it has gone away out of my
bosom, whatever it was.'

" On receiving this answer Russell smiled, looked at
the bench, and sat down. A ripple of derisive laughter
broke over the court, and a buzz of many voices followed.
The people standing around me looked at each other
and said, * Splendid.' The judges rose, the great crowd
melted away, and an Irishman who mingled in the
throng expressed, I think, the general sentiment in a
single word, * Smashed.' "

Pigott's cross-examination was finished the following
day, and the second day he disappeared entirely, and
later sent back from Paris a confession of his guilt,
admitting his perjury, and giving the details of how he
had forged the alleged Parnell letter by tracing words
and phrases from genuine Parnell letters, placed against
the window-pane, and admitting that he had sold the
forged letter for ;^6o5.

192

CROSS-EXAMINATION OF RICHARD PIGOTT

After the confession was read, the Commission " found "
that it was a forgery, and the Times withdrew the
facsimile letter.

A warrant was issued for Pigott's arrest on the charge
of perjury, but when he was tracked by the police to a
hotel in Madrid, he asked to be given time enough to
collect his belongings, and, retiring to his room, blew out
his brains.

193

CHAPTER XII

THE CROSS-EXAMINATION OF DR. IN THE CARLYLE

W. HARRIS CASE

CHAPTER XII

THE CROSS-EXAMINATION OF DR. IN THE CARLYLE W,

HARRIS CASE

The records of the criminal courts in this country
contain few cases that have excited so much human in-
terest among all classes of the community as the prose-
cution and conviction of Carlyle W. Harris.

Even to this day — ten years after the trial — there is
a widespread belief among men, perhaps more especially
among women, who did not attend the trial, but simply
listened to the current gossip of the day and followed
the newspaper accounts of the court proceedings, that
Harris was innocent of the crime for the commission of
which his life was forfeited to the state.

It is proposed in this chapter to discuss some of the
facts that led up to the testimony of one of the most distin-
guished toxicologists in the country, who was called for
the defence on the crucial point in the case ; and to give
extracts from his cross-examination, his failure to with-
stand which was the turning-point in the entire trial.
He returned to his home in Philadelphia after he left the
witness-stand, and openly declared in public, when asked

197

THE ART OF CROSS-EXAMINATION

to describe his experiences in New York, that he had
" gone to New York only to make a fool of himself and
return home again."

It is also proposed to give some of the inside history
of the case — facts that never came out at the trial, not
because they were unknown at the time to the district
attorney, nor unsusceptible of proof, but because the
strict rules of evidence in such cases often, as it seems
to the writer, withhold from the ears of the jury certain
facts, the mere recital of which seems to conclude the
question of guilt. For example, the rule forbidding the
presentation to the jury of anything that was said by
the victim of a homicide, even to witnesses surrounding
the death-bed, unless the victim in express terms makes
known his own belief that he cannot live, and that he has
abandoned all hope or expectation of recovery before he
tells the tale of the manner in which he was slain, or the
causes that led up to it, has allowed many a guilty
prisoner, if not to escape entirely, at least to avoid the
full penalty for the crime he had undoubtedly committed.

Carlyle Harris was a gentleman's son, with all the
advantages of education and breeding. In his twenty-
second year, and just after graduating with honors from
the College of Physicians and Surgeons in New York
City, he was indicted and tried for the murder of Miss
Helen Potts, a young, pretty, intelligent, and talented
school girl in attendance at Miss Day's Ladies' Boarding
School, on 40th Street, New York City.

198

THE CROSS-EXAMINATION OF DR.

Harris had made the acquaintance of Miss Potts in
the summer of 1889, and all during the winter paid
marked attention to her. The following spring, while
yisiting her uncle, who was a doctor, she was delivered
of a four months' child, and was obliged to confess to
her mother that she was secretly married to Harris under
assumed names, and that her student husband had him-
self performed an abortion upon her.

Harris was sent for. He acknowledged the truth of
his wife's statements, but refused to make the marriage
public. From this time on, till the day of her daughter's
death, the wretched mother made every effort to induce
Harris to acknowledge his wife publicly. She finally
wrote him on the 20th of January, 1891, "You must go
on the 8th of February, the anniversary of your secret
marriage, before a minister of the gospel, and there have
a Christian marriage performed — no other course than
this will any longer be satisfactory to me or keep me quiet"

That very day Harris ordered at an apothecary store
six capsules, each containing 4J grains of quinine and
J^ of a grain of morphine, and had the box marked:
" C. W. H. Student. One before retiring." Miss Potts
had been complaining of sick headaches, and Harris
gave her four of these capsules as an ostensible remedy.
He then wrote to Mrs. Potts that he would agree to her
terms " unless some other way could be found of satisfy-
ing her scruples," and went hurriedly to Old Point Com-
fort. Upon hearing from his wife that the capsules

199

THE ART OF CROSS-EXAMINATION

made her worse instead of better, he still persuaded her
to continue taking them. On the day of her death she
complained to her mother about the medicine Carlyle
had given her, and threatened to throw the box with the
remaining capsule out of the window. Her mother per-
suaded her to try this last one, which she promised to do.
Miss Potts slept in a room with three classmates who,
on this particular night, had gone to a symphony concert.
Upon their return they found Helen asleep, but woke
her up and learned from her that she had been having
"such beautiful dreams," she "had been dreaming of
Carl." Then she complained of feeling numb, and
becoming frightened, begged the girls not to let her go
to sleep. She repeated that she had taken the medicine
Harris had given her, and asked them if they thought it
possible that he would give her anything to harm her.
She soon fell into a profound coma, breathing only twice
to the minute. The doctors worked over her for eleven
hours without restoring her to consciousness, when she
stopped breathing entirely.

The autopsy, fifty-six days afterward, disclosed an
apparently healthy body, and the chemical analysis of
the contents of the stomach disclosed the presence of
morphine but not of quinine, though the capsules as
originally compounded by the druggist contained twenty-
seven times as much quinine as morphine.

This astounding discovery led to the theory of the
prosecution: that Harris had emptied the contents of

200

THE CROSS-EXAMINATION OF DR.

one of the capsules, had substituted morphine in suffi-
cient quantities to kill, in place of the 4^ grains of qui-
nine (to the eye, powdered quinine and morphine are
identical), and had placed this fatal capsule in the box
with the other three harmless ones, one to be taken each
night. He had then fled from the city, not knowing
which day would brand him a murderer.

Immediately after his wife's death Harris went to one
of his medical friends and said : " I only gave her four
capsules of the six I had made up ; the two I kept out
will show that they are perfectly harmless. No jury can
convict me with those in my possession ; they can be ana-
lyzed and proved to be harmless^

They were analyzed and it was proved that the pre-
scription had been correctly compounded. But often-
times the means a criminal uses in order to conceal his
deed are the very means that Providence employs to
reveal the sin that lies hidden in his soul. Harris failed
to foresee that it was the preservation of these capsules
that would really convict him. Miss Potts had taken
all that he had given her, and no one could ever have
been certain that it was not the druggist's awful mistake,
had not these retained capsules been analyzed. When
Harris emptied one capsule and reloaded it with mor-
phine, he had himself become the druggist.

It was contended that Harris never intended to recog-
nize Helen Potts as his, wife. He married her in secret,
it appeared at the trial, — as it were from his own lips

201

THE ART OF CROSS-EXAMINATION

through the medium of conversation with a friend, —
"because he could not accomplish her ruin in any
other way." He brought her to New York, was mar-
ried to her before an alderman under assumed names,
and then having accomplished his purpose, burned the
evidence of their marriage, the false certificate. Finally,
when the day was set upon which he must acknowledge
her as his wife, he planned her death.

The late recorder, Frederick Smyth, presided at the
trial with great dignity and fairness. The prisoner was
ably represented by John A. Taylor, Esq., and William
Travers Jerome, Esq., the present district attorney of
New York.

Mr. Jerome's cross-examination of Professor Witthaus,
the leading chemist for the prosecution, was an ex-
tremely able piece of work, and during its eight hours
disclosed an amount of technical information and re-
search such as is seldom seen in our courts. Had it
not been for the witness's impregnable position, he cer-
tainly would have succumbed before the attack. The
length and technicality of the examination render its use
impracticable in this connection ; but it is recommended
to all students of cross-examination who find themselves
confronted with the task of examination in so remote a
branch of the advocate's equipment as a knowledge of
chemistry.

The defence consisted entirely of medical testimony,
directed toward creating a doubt as to our theory that

202

THE CROSS-EXAMINATION OF DR.

morphine was the cause of death. Their cross-exami-
nation of our witnesses was suggestive of death from
natural causes: from heart disease, a brain tumor, apo-
plexy, epilepsy, uremia. In fact, the multiplicity of their
defences was a great weakness. Gradually they were
forced to abandon all but two possible causes of death,
— that by morphine poisoning and that by uremic poi-
soning. This narrowed the issue down to the question.
Was it a large dose of morphine that caused death, or
was it a latent kidney disease that was superinduced
and brought to light in the form of uremic coma by
small doses of morphine, such as the one-sixth of a grain
admittedly contained in the capsules Harris admin-
istered? In one case Harris was guilty; in the other
he was innocent.

Helen Potts died in a profound coma. Was it the
coma of morphine, or that of kidney disease ? Many of
the leading authorities in this city had given their con-
victions in favor of the morphine theory. In reply to
those, the defence was able to call a number of young
doctors, who have since made famous names for them-
selves, but who at the time were almost useless as
witnesses with the jury because of their comparative
inexperience. Mr. Jerome had, however, secured the
services of one physician who, of all the others in the
country, had perhaps apparently best qualified himself
by his writings and thirty years of hospital experience to
speak authoritatively upon the subject.

203

THE ART OF CROSS-EXAMINATION

His direct testimony was to the effect that — basing
his opinion partly upon wide reading of the literature of
the subject, and what seemed to him to be the general
consensus of professional opinion about it, and ^""very
largely on his own experience''^ — no living doctor can dis-
tinguish the coma of morphine from that of kidney dis-
ease ; and as the theory of the criminal law is that, if the
death can be equally as well attributed to natural causes
as to the use of poison, the jury would be bound to give
the prisoner the benefit of the doubt and acquit him.

It was the turning-point in the trial. If any of the
jurors credited this testimony, — the witness gave the
reasons for his opinion in a very quiet, conscientious,
and impressive manner, — there certainly could be no
conviction in the case, nothing better than a disagree-
ment of the jury. It was certain Harris had given the
capsules, but unless his wife had died of morphine poi-
soning, he was innocent of her death.

The cross-examination that follows is much abbreviated
and given partly from memory. It was apparent that the
witness would withstand any amount of technical exami-
nation and easily get the better of the cross-examiner if
such matters were gone into. He had made a profound
impression. The court had listened to him with breath-
less interest. He must be dealt with gently and, if
possible, led into self-contradictions where he was least
prepared for them.

The cross-examiner sparred for an opening with the

204

THE CROSS-EXAMINATION OF DR.

determination to strike quickly and to sit down if he got
in one telling blow. The first one missed aim a little,
but the second brought a peal of laughter from the jury
and the audience, and the witness retired in great con-
fusion. Even the lawyers for the defence seemed to lose
heart, and although two hours before time of adjourn-
ment, begged the court for a recess till the following
day.

Counsel (quietly). " Do you wish the jury to under-
stand, doctor, that Miss Helen Potts did not die of
morphine poisoning? "

Witness. " I do not swear to that."
Counsel. " What did she die of ? "
Witness. " I don't swear what she died of."
Counsel. " I understood you to say that in your opin-
ion the symptoms of morphine could not be sworn to
with positiveness. Is that correct?"

Witness. " I don't think they can, with positiveness."

Counsel " Do you wish to go out to the world as

saying that you have never diagnosed a case of morphine

poisoning excepting when you had an autopsy to exclude

kidney disease?"

Witness. " I do not I have not said so."
Counsel "Then you have diagnosed a case on the
sjmiptoms alone, yes? or no? I want a categorical
answer."

Witness (sparring). " I would refuse to answer that
question categorically; the word * diagnosed' is used

205

THE ART OF CROSS-EXAMINATION

with two different meanings. One has to make what is
known as a ' working diagnosis ' when he is called to a
case, not a positive diagnosis."

Counsel. " When was your last case of opium or mor-
phine poisoning ? "

Witness. " I can't remember which was the last."

Counsel (seeing an opening). " I don't want the name
of the patient. Give me the date approximately, that is,
the year — but under oath."

Witness. " I think the last was some years ago."

Counsel " How many years ago ? "

Witness (hesitating). " It may be eight or ten years
ago."

Counsel "Was it a case of death from morphine
poisoning ? "

Witness. " Yes, sir."

Counsel " Was there an autopsy ? "

Witness. " No, sir."

Counsel " How did you know it was a death from
morphine, if, as you said before, such symptoms cannot
be distinguished } "

Witness. " I found out from a druggist that the woman
had taken seven grains of morphine."

Counsel "You made no diagnosis at all until you
heard from the druggist ? "

Witness. " I began to give artificial respiration."

Counsel " But that is just what you would do in a
case of morphine poisoning ? "

206

THE CROSS-EXAMINATION OF DR.

Witness (hesitating). " Yes, sir. I made, of course, a
working diagnosis."

Counsel. " Do you remember the case you had before
that?"

Witness. " I remember another case."

Counsel. "When was that?"

Witness. " It was a still longer time ago. I don't
know the date."

Counsel. " How many years ago, on your oath ? "

Witness. " Fifteen, probably."

Counsel. " Any others ? "

Witness. " Yes, one other."

Counsel. "When?"

Witness. " Twenty years ago."

Counsel. " Are these three cases all you can remember
in your experience ? "

Witness. "Yes, sir."

Counsel (chancing it). " Were more than one of them
deaths from morphine ? "

Witness. " No, sir, only one."

Counsel (looking at the jury somewhat triumphantly).
"Then it all comes down to this: you have had the
experience of one case of morphine poisoning in the
last twenty years?"

Witness (in a low voice). "Yes, sir, one that I can
remember."

Counsel (excitedly). "And are you willing to come
here from Philadelphia, and state that the New York

207

THE ART OF CROSS-EXAMINATION

doctors who have already testified against you, and who
swore they had had seventy-five similar cases in their
own practice, are mistaken in their diagnoses and
conclusions ? "

Witness (embarrassed and in a low tone). " Yes, sir,
I am."

Counsel. "You never heard of Helen Potts until a
year after her death, did you ? "

Witness. " No, sir." v

Counsel. " You heard these New York physicians say
that they attended her and observed her symptoms for
eleven hours before death ? "

Witness. " Yes, sir."

Counsel " Are you willing to go on record, with your
one experience in twenty years, as coming here and
saying that you do not believe our doctors can tell
morphine poisoning when they see it?"

Witness (sheepishly). " Yes, sir."

Counsel "You have stated, have you not, that the
symptoms of morphine poisoning cannot be told with
positiveness 'i "

Witness. " Yes, sir."

Counsel "You said you based that opinion upon
your own experience, and it now turns out you have
seen but one case in twenty years."

Witness. " I also base it upon my reading."

Counsel (^coming almost contemptuous in manner).
" Is your reading confined to your own book ? "

208

THE CROSS-EXAMINATION OF DR.

Witness (excitedly). " No, sir ; I say no."

Counsel (calmly). " But I presume you embodied in
your own book the results of your reading, did you
not?"

Witness (a little apprehensively). " I tried to, sir."

It must be explained here that the attending physi-
cians had said that the pupils of the eyes of Helen
Potts were contracted to a pin-point, so much so as
to be practically unrecognizable, and symmetrically
contracted — that this symptom was the one invariably
present in coma from morphine poisoning, and dis-
tinguished it from all other forms of death, whereas
in the coma of kidney disease one pupil would be
dilated and the other contracted; they would be un-
symmetrical.

Counsel (continuing). " Allow me to read to you from
your own book on page i66, where you say (reading),
' I have thought that inequality of the pupils ' — that is,
where they are not symmetrically contracted — * is proof
that a case is not one of narcotism ' — or morphine poi-
soning — * but Professor Taylor has recorded a case of
morphine poisoning in which it [the unsymmetrical con-
traction of the pupils] occurred^ Do I read it as you
intended it?"

Witness. "Yes, sir."

Counsel " So until you heard of the case that Professor
Taylor reported^ you had always supposed symmetri-
cal contraction of the pupils of the eyes to be the distin-
o 209

THE ART OF CROSS-EXAMINATION

guisking symptom of morphine poisonings and it is on
this that you base your statement that the New York doc-
tors could not tell morphine poisoning positively when
they see it?^^

Witness (little realizing the point). " Yes, ^ir."
Counsel (very loudly). " Well^ sir^ did you investigate
that case far enough to discover that Professor Taylors
patient had one glass eye ? " ^

Witness (in confusion). " I have no memory of it"
Counsel " That has been proved to be the case here.
You would better go back to Philadelphia, sir."

There were roars of laughter throughout the audience
as counsel resumed his seat and the witness walked out
of the court room. It is difficult to reproduce in print
the effect made by this occurrence, but with the retire-
ment of this witness the defendant's case suffered a
collapse from which it never recovered.

It is interesting to note that within a year of Harris's
conviction. Dr. Buchanan was indicted and tried for a
similar offence — wife poisoning by the use of morphine.

It appeared in evidence at Dr. Buchanan's trial that,
during the Harris trial and the examination of the medi-
cal witnesses, presumably the witness whose examination
has been given above, Buchanan had said to his mess-

^ The reports of six thousand cases of morphine poisoning had been ex-
amined by the prosecation in this case before trial, and among them the case
reported by Professor Taylor.

2 ID

THE CROSS-EXAMINATION OF DR.

mates that " Harris was a fool, he didn't know how

to mix his drugs. If he had put a little atropine with his
morphine, it would have dilated the pupil of at least one
of his victim's eyes, and no doctor could have deposed to
death by morphine."

When Buchanan's case came up for trial it was dis-
covered that, although morphine had been found in the
stomach, blood, and intestines of his wife's body, the pupils
of the eyes were not symmetrically contracted. No posi-
tive diagnosis of her case could be made by the attending
physicians until the continued chemical examination of
the contents of the body disclosed indisputable evidence
of atropine (belladonna). Buchanan had profited by the
disclosures in the Harris trial, but had made the fatal
mistake of telling his friends how it could have been
done in order to cheat science. It was this statement of
his that put the chemists on their guard, and resulted in
Buchanan's conviction and subsequent execution.

Carlyle Harris maintained his innocence even after the
Court of Appeals had unanimously sustained his convic-
tion, and even as he calmly took his seat in the electric
chair.

The most famous English poison case comparable to
the Harris and Buchanan cases was that of the celebrated
William Palmer, also a physician. by profession, who poi-
soned his companion by the use of strychnine in order
to obtain his money and collect his racing bets. The
trial is referred to in detail in another chapter.

211

THE ART OF CROSS-EXARIiNATION

Palmer, like Harris and Buchanan, maintained a stoical
demeanor throughout his trial and confinement in jail,
awaiting execution. The morning of his execution he
ate his eggs at breakfast as if he were going on a journey.
When he was led to the gallows, it was demanded of him
in the name of God, as was the custom in England in
those days, if he was innocent or guilty. He made no
reply. Again the question was put, " William Palmer, in
the name of Almighty God, are you innocent or guilty?"
Just as the white cap came over his face he murmured in
a low breath, " Guilty," and the bolts were drawn with a
crash.

212

CHAPTER XIII

THE BELLEVUE HOSPITAL CASE

CHAPTER XIII

THE BELLEVUE HOSPITAL CASE

On December 15, 1900, there appeared in the New
York World an article written by Thomas J. Minnock, a
newspaper reporter, in which he claimed to have been an
eye-witness to the shocking brutality of certain nurses in
attendance at the Insane Pavilion of Bellevue Hospital,
which resulted in the death, by strangulation, of one of
its inmates, a Frenchman named Hilliard This French-
man had arrived at the hospital at about four o'clock in
the afternoon of Tuesday, December 11. He was suffer-
ing from alcoholic mania, but was apparently otherwise
in normal physical condition. Twenty-six hours later,
or on Wednesday, December 12, he died. An autopsy
was performed which disclosed several bruises on the
forehead, arm, hand, and shoulder, three broken ribs and
a broken hyoid bone in the neck (which supports the
tongue), and a suflFusion of blood or haemorrhage on both
sides of the windpipe. The coroner's physician reported
the cause of death, as shown by the autopsy, to be stran-
gulation. The newspaper reporter, Minnock, claimed to
have been in Bellevue at the time, feigning insanity for
newspaper purposes; and upon his discharge from the

215

THE ART OF CROSS-EXAMINATION .

hospital he stated that he had seen the Frenchman stran-
gled to death by the nurses in charge of the Pavilion by
the use of a sheet tightly twisted around the insane man's
neck. The language used in the newspaper articles writ-
ten by Minnock to describe the occurrences preceding the
Frenchman's death was as follows : —

"At supper time on Wednesday ^evening, when the
Frenchman, Mr. Milliard, refused to eat his supper, the
nurse, Davis, started for him. Milliard ran around
the table, and the other two nurses. Dean and Marshall,
headed him off and held him ; they forced him down on
a bench, Davis called for a sheet, one of the other two,
I do not remember which, brought it, and Davis drew
it around Milliard's neck like a rope. Dean was behind
the bench on which Milliard had been pulled back ; he
gathered up the loose ends of the sheet and pulled the
linen tight around Milliard's neck, then he began to
twist the folds in his hand. I was horrified. I have
read of the garrote ; I have seen pictures of how persons
are executed in Spanish countries ; I realized that here,
before my eyes, a strangle was going to be performed.
Davis twisted the ends of the sheet in his hands, round
and round ; he placed his knee against Milliard's back
and exercised all his force. The dying man's eyes
began to bulge from their sockets; it made me sick,
but I looked on as if fascinated. Milliard's hands
clutched frantically at the coils around his neck. ' Keep
his hands down, can't you?' shouted Davis in a rage.

216

THE BELLEVUE HOSPITAL CASE

Dean and Marshall seized the helpless man's hands;
•^slowly, remontelessly, Davis keftit on twisting the sheet.
Milliard began to get black in the face; his tongue was
hanging out./ Marshall got frightened. * J^^t up, he is
getting black ! * he said to Divis. Davis let out a coUple
of twists of the sheet, but did not seem to like to do it.
At last Milliard got a little breath, just a little. The
sheet was still brought tight about the neck. *Now
will you eat?* cried Davi^ 'No,' gasped the insane
man. Davis was furious. ' Well, I will make you eat ;
I will choke you until you do eat,' he shouted, and he
began to twist the sheet again. Milliard's head would
have fallen upon his breast but for the fact that Davis
was holding it up. Me began to get black in the face
again. A second time they got frightened, and Davis
eased up on the string. Me untwisted the sheet, but
still kept a firm grasp on the folds. It took Milliard
some time to come to. When he did at last, Davis
again asked him if he would eat. Milliard had just
breath enough to whisper faintly, * No.' I thought the
man was dying then. Davis twisted up the sheet again,
and cried, * Well, I will make him eat or I will choke
him to death.' Me twisted and twisted until I thought
he would break the man's neck. Milliard was uncon-
scious at last. Davis jerked the man to the floor and
kneeled on him, but still had the strangle hold with his
knee giving him additional purchase. Me twisted the
sheet until his own fingers were sore, then the three

217

THE ART OF CROSS-EXAMINATION

nurses dragged the limp body to the bath-room, heaved
him into the tub with his clothes on, and turned the •
cold water on him. He was dead by this time, I believe.
He was strangled to death, and the finishing touches
were put on when they had him on the floor. No big,
strong, healthy man could have lived under that awful
strangling. Hilliard was weak and feeble."

The above article appeared in the morning Journal,
a few days after the origii^l publication in the New
York World. The other local papers immediately took
up the story, and it is easy to imagine the pitch to which
the public excitement and indignation were aroused. The
three nurses in charge of the pavilion at the time of Hil-
liard's death were immediately indicted for manslaughter,
and the head nurse, Jesse R. Davis, was promptly put on
trial in the Court of General Sessions, before Mr. Justice
Cowing and a "special jury." The trial lasted three
weeks, and after deliberating five hours upon their ver-
dict, the jury acquitted the prisoner.

The intense interest taken in the case, not only by the
public, but by the medical profession, was increased by
the fact that for the first time in the criminal courts of
this country two inmates of the insane pavilion, them-
selves admittedly insane, were called by the prosecution,
and sworn and accepted by the court as witnesses against
the prisoner. One of these witnesses was suflFering from
a form of insanity known as paranoia, and the other from
general paresis. With the exception of the two insane^

218

THE BELLEVUE HOSPITAL CASE

witnesses and the medical testimony founded upon the
autopsy, there was no direct evidence on which to con-
vict the prisoner but the statement of the newspaper
reporter, Minnock. He was the one sane witness called
on behalf of the prosecution, who was an eye-witness to
the occurrence, and the issues in the case gradually nar-
rowed down to a question of veracity between the news-
paper reporter and the accused prisoner, the testimony
of each of these witnesses being corroborated or
contradicted on one side or the other by various other
witnesses.

If Minnock's testimony was credited by the jury, the
prisoner's contradiction would naturally have no eflFect
whatever, and the public prejudice, indignation, and
excitement ran so high that the jury were only too ready
and willing to accept the newspaper account of the trans-
action. The cross-examination of Minnock, therefore,
became of the utmost importance. It was essential that
the eflFect of his testimony should be broken, and counsel
having his cross-examination in charge had made the
most elaborate preparations for the task. Extracts from
the cross-examination are here given as illustrations of
many of the suggestions which have been discussed in
previous chapters.

The district attorney in charge of the prosecution was
Franklin Pierce, Esq. In his opening address to the
jury he stated that he " did not believe that ever in the
||istory of the state, or indeed of the country, had a jury

219

THE ART OF CROSS-EXAMINATION

been called upon to decide such an important case as the
one on trial." He continued : " There is no fiction — no
' Hard Cash ' — in this case. The facts here surpass any-
thing that fiction has ever produced. The witnesses will
describe the most terrible treatment that was ever given
to an insane man. No writer of fiction could have put
them in a book. They would appear so improbable and
monstrous that his manuscript would have been rejected
as soon as offered to a publisher."

When the reporter, Minnock, stepped to the witness-
stand, the court room was crowded, and yet so intense
was the excitement that every word the witness uttered
could be distinctly heard by everybody present He
gave his evidence in chief clearly and calmly, and with
no apparent motive but to narrate correctly the details of
the crime he had seen committed. Any one unaware
of his career would have regarded him as an unusually
clever and apparently honest and courageous man with a
keen memory and with just the slightest touch of gratifi-
cation at the important position he was holding in the
public eye in consequence of his having unearthed the
atrocities perpetrated in our public hospitals.

His direct evidence was practically a repetition of his
newspaper article already referred to, only much more in
detail. After questioning him for about an hour, the
district attorney sat down with a confident " He is your
witness, if you wish to cross-examine him."

No one who has never experienced it can have the

220

THE BELLEVUE HOSPITAL CASE

slightest appreciation of the nervous excitement attendant
on being called upon to cross-examine the chief witness
in a case involving the life or liberty of a human being.
If Minnock withstood the cross-examination, the nurse
Davis, apparently a most worthy and refined young man
who had just graduated from the Mills Training School
for Nurses, and about to be married to a most estimable
young lady, would have to spend at least the next twenty
years of his life at hard labor in state prison.

The first fifteen minutes of the cross-examination were
devoted to showing that the witness was a thoroughly
educated man, twenty-five years of age, a graduate of
Saint John's College, Fordham, New York, the Sacred
Heart Academy, the Francis Xavier, the De Lasalle In-
stitution, and had travelled extensively in Europe and
America. The cross-examination then proceeded: —

Counsel (amiably). " Mr. Minnock, I believe you have
written the story of your life and published it in the
Bridgeport Sunday Herald as recently as last December ?
I hold the original article in my hand."

Witness. " It was not the story of my life."

Counsel " The article is signed by you and purports
to be a history of your life."

Witness. " It is an imaginary story dealing with hyp-
notism. Fiction partly, but it dealt with facts."

Counsel " That is, you mean to say you mixed fiction
and fact in the history of your life ? "

Witness. " Yes, sir."

221

THE ART OF CROSS-EXAMINATION

Counsel. " In other words, you dressed up facts with
fiction to make them more interesting ? "

Witness. " Precisely."

Counsel. " When in this article you wrote that at the
age of twelve you ran away with a circus, was that dressed
up?"

Witness. " Yes, sir."

Counsel. " It was not true ? "

Witness. " No, sir."

Counsel. " When you said that you continued with
this circus for over a year, and went with it to Belgium,
there was a particle of truth in that because you did, as
a matter of fact, go to Belgium, but not with the circus
as a public clown ; is that the idea ? "

Witness. " Yes, sir."

Counsel. " So there was some little truth mixed in at
this point with the other matter? "

Witness. " Yes, sir."

Counsel. " When you wrote that you were introduced
in Belgium, at the Hospital General, to Charcot, the cele-
brated Parisian hypnotist, was there some truth in that?"

Witness. " No, sir."

Counsel. "You knew that Charcot was one of the
originators of hypnotism in France, didn't you?"

Witness. " I knew that he was one of the original
hypnotists."

Counsel. " How did you come to state in the news-
paper history of your life that you were introduced to

222

THE BELLEVUE HOSPITAL CASE

Charcot at the Hospital General at Paris if that was not
true?"

Witness. " While there I met a Charcot"

Counsel. " Oh, I see."

Witness. " But not the original Charcot."

Counsel. " Which Charcot did you meet ? "

Witness. " A woman. She was a lady assuming the
name of Charcot, claiming to be Madame Charcot"

Counsel. " So that when you wrote in this article that
you had met Charcot, you intended people to understand
that it was the celebrated Professor Charcot, and it was
partly true, because there was a woman by the name of
Charcot whom you had really met ? "

Witness. " Precisely."

Counsel (quietly). "That is to say, there was some
truth in it?"

Witness. "Yes, sir."

Counsel. " When in that article you said that Charcot
taught you to stand pain, was there any truth in that ? "

Witness. "No."

CounseL " Did you as a matter of fact learn to stand
pain?"

Witness. "No."

Counsel. " When you said in this article that Charcot
began by sticking pins and knives into you little by
little, so as to accustom you to standing pain, was that
aU fiction?"

Witness. "Yes, sir."

223

THE ART OF CROSS-EXAMINATION

Counsel. " When you wrote that Charcot taught you
to reduce your respirations to two a minute, so as to
make your body insensible to pain, was that fiction ? "

Witness. " Purely imagination."

Court (interrupting). "Counsellor, I will not allow
you to go further in this line of inquiry. The witness
himself says his article was almost entirely fiction, some
of it founded upon fact. I will allow you the greatest
latitude in a proper way, but not in this direction."

Counsel. " Your Honor does not catch the point."

Court. " I do not think I do."

Counsel. " This prosecution was started by a news-
paper article written by the witness, and published in
the morning Journal. It is the claim of the defence
that the newspaper article was a mixture of fact and fic-
tion, mostly fiction. The witness has already admitted
that the history of his life, published but a few months
ago, and written and signed by himself and sold as a his-
tory of his life, was a mixture of fact and fiction, mostly
fiction. Would it not be instructive to the jury to learn
from the lips of the witness himself how far he dressed
up the pretended history of his own life, that they may
draw from it some inference as to how far he has like-
wise dressed up the article which was the origin of this
prosecution ? "

Court. " I shall grant you the greatest latitude in ex-
amination of the witness in regard to the newspaper
article which he published in regard to this case, but I

224

THE BELLEVUE HOSPITAL CASE

exclude all questions relating to the witness's newspaper
history of his own life,"

Counsel. " Did you not have yourself photographed
and published in the newspapers in connection with the
history of your life, with your mouth and lips and ears
sewed up, while you were insensible to pain ? "

Court " Question excluded,"

Counsel " Did you not publish a picture of yourself
in connection with the pretended history of your life,
representing yourself upon a cUoss, spiked hand and foot,
but insensible to pain, in consequence of the instruction
you had received from Professor Charcot ? "

Court " Question excluded."

Counsel " I ofifer these pictures and articles in evi-
dence,"

G^a^r/ (roughly). "Excluded."

Counsel " In the article you published in the New
York Journal^ wherein you described the occurrences in
the present case, which you have just now related upon
the witness-stand, did you there have yourself represented
as in the position of the insane patient, with a sheet
twisted around your neck, and held by the hands of the
hospital nurse who was strangling you to death ? "

Witness. " I wrote the article, but I did not pose for
the picture. The picture was posed for by some one else
who looked like me."

Counsel (stepping up to the witness and handing him
the newspaper article). "Are not these words under

P 225

THE ART OF CROSS-EXAMINATION

your picture, 'This is how I saw it done, Thomas J.
Minnock,' a facsimile of your handwriting ? "

Witness. " Yes, sir, it is my handwriting."

Counsel. " Referring to the history of your life again
how many imaginary articles on the subject have you
written for the newspapers throughout the country ? "

Witness. "One,"

Counsel. " You have put several articles in New York
papers, have you not ? "

Witness. " It was only the original story. It has since
been redressed, that's all."

Counsel. " Each time you signed the article and sold
it to the newspaper for money, did you not ? "

Court. "Excluded."

Counsel (with a sudden change of manner, and in a
loud voice, turning to the audience). " Is the chief of
police of Bridgeport, Connecticut, in the court room?
(Turning to the witness.) Mr. Minnock, do you know
this gentleman?"

Witness. " I do."

Counsel. "Tell the jury when you first made his
acquaintance."

Witness. "It was when I was arrested in the At-
lantic Hotel, in Bridgeport, Connecticut, with my
wife."

Counsel. " Was she your wife at the time ? "

Witness. " Yes, sir."

Counsel. " She was but sixteen years old ? "

226

THE BELLEVUE HOSPITAL CASE

Witness. " Seventeen, I guess."

Counsel. " You were arrested on the ground that you
were trying to drug this sixteen-year-old girl and kidnap
her to New York. Do you deny it ? "

Witness (doggedly). " I was arrested."

Counsel (sharply). " You know the cause of the arrest
to be as I have stated ? Answer yes or no 1 "

Witness (hesitating). " Yes, sir."

Counsel "You were permitted by the prosecuting
attorney, F. A. Bartlett, to be discharged without
trial on your promise to leave the state, were you
not?"

Witness. " I don't remember anything of that"

Counsel " Do you deny it? "

Witness. " I do."

Counsel ** Did you have another young man with you
upon that occasion ? "

Witness. " I did. A college chum."

Counsel "Was he also married to this sixteen-year-
old girl?"

Witness (no answer).

Counsel (pointedly at witness). " Was he married to
this girl also ? "

Witness. "Why, no."

Counsel "You say you were married to her. Give
me the date of your marriage."

Witness (hesitating). " I don't remember the date."

Counsel " How many years ago was it? "

227

THE ART OF CROSS-EXAMINATION

Witness. " I don't remember."

Counsel. " How many years ago was it ? "

Witness. " I couldn't say."

Counsel. " What is your best memory as to how many
years ago it was ? "

Witness. " I can't recollect"

Counsel. "Try to recollect about when you were
married."

Witness. "I was married twice, civil marriage and
church marriage."

Counsel. " I am talking about Miss Sadie Cook.
When were you married to Sadie Cook, and where is
the marriage recorded ? "

Witness. " I tell you I don't remember."

Counsel "Try."

Witness. " It might be five or six or seven or ten
years ago."

Counsel. " Then you cannot tell within five years of
the time when you were married, and you are now only
twenty-five years old ? "

Witness. " I cannot."

Counsel. " Were you married at fifteen years of age ? "

Witness. " I don't think I was."

Counsel. " You know, do you not, that your marriage
was several years after this arrest in Bridgeport that I
have been speaking to you about ? "

Witness. " I know nothing of the kind."

Counsel (resolutely). " Do you deny it ? "

228

THE BELLEVUE HOSPITAL CASE

Witness (hesitating). " Well, no, I do not deny it"

Counsel. " I hand you now what purports to be the
certificate of your marriage, three years ago. Is the date
correct ? "

Witness. " I never saw it before."

Counsel. " Does the certificate correctly state the time
and place and circumstances of your marriage ? "

Witness. " I refuse to answer the question on the
ground that it would incriminate my wife."

The theory on which the defence was being made
was that the witness, Minnock, had manufactured the
story which he had printed in the paper, and later swore
to before the grand jury and at the trial. The effort in
his cross-examination was to show that he was the kind
of man who would manufacture such a story and sell it
to the newspapers, and afterward, when compelled to do
so, swear to it in court.

Counsel next called the witness's attention to many
facts tending to show that he had been an eye-witness
to adultery in divorce cases, and on both sides of them,
first on one side, then on the other, in the same case,
and that he had been at one time a private detective.
Men whom he had robbed and blackmailed and cheated
at cards were called from the audience, one after another,
and he was confronted with questions referring to these
charges, all of which he denied in the presence of his
accusers. The presiding judge having stated to the
counsel in the hearing of the witness that although he

229

THE ART OF CROSS-EXAMINATION

allowed the witness to be brought face to face with his
alleged accusers, yet he would allow no contradictions
of the witness on these collateral matters. Minnock's
former defiant demeanor immediately returned.

The next interrogatories put to the witness developed
the fact that, feigning insanity, he had allowed himself
to be taken to Bellevue with the hope of being trans-
ferred to Ward's Island, with the intention of finally
being discharged as cured, and then writing sensational
newspaper articles regarding what he had seen while an
inmate of the public insane asylums; that in Bellevue
Hospital he had been detected as a malingerer by one
of the attending physicians. Dr. Fitch, and had been
taken before a police magistrate where he had stated in
open court that he had found ever)rthing' in Bellevue
"far better than he had expected to find it,** and that he
had " no complaint to make and nothing to criticise."

The witness's mind was then taken from the main sub-
ject by questions concerning the various conversations
had with the different nurses while in the asylum, all
of which conversations he denied. The interrogatories
were put in such a way as to admit of a " yes " or " no "
answer only. Gradually coming nearer to the point
desired to be made, the following questions were asked: —

CounseL "Did the nurse Gordon ask you why you
were willing to submit to confinement as an insane
patient, and did you reply that you were a newspaper
man and under contract with a Sunday paper to write

230

THE BELLEVUE HOSPITAL CASE

up the methods of the asylum, but that the paper had
repudiated the contract ? "

Witness. "No."

Counsel. " Or words to that effect ? "

Witness. "No."

Counsel. "I am referring to a time subsequent to
your discharge from the asylum, and after you had
returned to take away your belongings. Did you, at
that time, tell the nurse Gordon that you had expected to
be able to write an article for which you could get ^^140?"

Witness. " I did not."

Counsel. " Did the nurse say to you, * You got fooled
this time, didn't you ? ' And did you reply, ' Yes, but I
will try to write up something and see if I can't get
square with themi*"

Witness. " I have no memory of it."

Counsel. " Or words to that effect ? "

Witness. " I did not."

All that preceded had served only as a veiled introduc-
tion to the next important question.

Counsel (quietly). " At that time, as a matter of fact,
did you know anything you could write about when you
got back to the Herald office ? "

Witness. " / knew there was nothing to write^

Counsel. " Did you know at that time, or have any
idea, what you would write when you got out ? "

Witness. "Did I at that time know? Why, I knew
there was nothing to writer

231

THE ART OF CROSS-EXAMINATION

Counsel (walking forward and pointing Excitedly at the
witness). "Although you had seen a man choked to
death with a sheet on Wednesday night, you knew on
Friday morning that there was nothing you could write
about?"

Witness (hesitating). " I didn't know they had killed
the man."

Counsel. " Although you had seen the patient fall un-
conscious several times to the floor after having been
choked with the sheet twisted around his neck, you knew
there was nothing to write about ? "

Witness. " I knew it was my duty to go and see the
charity commissioner and tell him about that."

Counsel. " But you were a newspaper reporter in the
asylum, for the purpose of writing up an article. Do
you want to take back what you said a moment ago —
that you knew there was nothing to write about ? "

Witness. "Certainly not. I did not know the man
was dead."

Counsel. " Did you not testify that the morning after
you had seen the patient choked into unconsciousness,
you heard the nurse call up the morgue to inquire if
the autopsy had been made ? "

Witness (sheepishly.) " Well, the story that I had the
contract for with the Herald was cancelled."

Counsel. " Is it not a fact that within four hours of the
time you were finally discharged from the hospital on
Saturday afternoon, you read the newspaper account of

232

THE BELLEVUE HOSPITAL CASE

the autopsy, and then immediately wrote your story of
having seen this patient strangled to death and offered
it for sale to the New York World? "

Witness. " That is right ; yes, sir/'

Counsel. " You say you knew it was your duty to go
to the charity commissioner and tell him what you had
seen. Did you go to him ? "

Witness. " No, not after I found out through reading
the autopsy that the man was killed."

Counsel " Instead, you went to the Worlds and offered
them the story in which you describe the way Milliard
was killed?"

Witness. "Yes."

Counsel " And you did this within three or four hours
of the time you read the newspaper account of the
autopsy } "

Witness. "Yes."

Counsel "The editors of the World refused your
story unless you would put it in the form of an affidavit,
did they not?"

Witness. "Yes."

Counsel " Did you put it in the form of an affidavit?"

Witness. "Yes."

Counsel. " And that was the very night that you were
discharged from the hospital ? "

Witness. "Yes."

Counsel "Every occurrence was then fresh in your
mind, was it not ? "

239

THE ART OF CROSS-EXAMINATION

Witness (hesitating). "What?"

Counsel. " Were the occurrences of the hospital fresh
in your mind at the time ? "

Witness. "Well, not any fresher then i than they are
now."

Counsel. " As fresh as now ? "

Witness. "Yes, sir."

Counsel (pausing, looking among his papers, selecting
one and walking up to the witness, handing it to him).
" Take this affidavit, made that Friday night, and sold
to the World; show me where there is a word in it
about Davis having strangled the Frenchman with a
sheet, the way you have described it here to-day to this
jury."

Witness (refusing paper). " No, I don't think that it is
there. It is not necessary for me to look it over."

Counsel (shouting). " Don't think ! You know that
it is not there, do you not ? "

Witness (nervously). " Yes, sir ; it is not there."

Counsel " Had you forgotten it when you made that
affidavit?"

Witness. "Yes, sir."

Counsel (loudly). " You^had forgotten it, although only
three days before you had seen a man strangled in your
presence, with a sheet twisted around his throat, and
had seen him fall lifeless upon the floor; you had forgot-
ten it when you described the incident and made the
affidavit about it to the World?''

234

THE BELLEVUE HOSPITAL CASE

Witness (hesitating). "I made two affidavits. I be-
lieve that is in the second affidavit"

CounseL "Answer my questions, Mr. Minnock. Is
there any doubt that you had forgotten it when you
made the first affidavit to the World? "

Witness. " I had forgotten it."

Counsel (abruptly). " When did you recollect ? "

Witness. " I recollected it when I made the second
affidavit before the coroner."

Counsel. " And when did you make that ? "

Witness. " It was a few days afterward, probably the
next day or two."

Counsel (looking among his papers, and again walking
up to the witness). " Please take the coroner's affidavit
and point out to the jury where there is a word about
a sheet having been used to strangle this man."

Witness (refusing paper). " Well, it may not be there."

Counsel. "Is it there?"

Witness (still refusing paper). " I don't know."

CounseL " Read it, read it carefully."

Witness (reading). " I don't see anything about it."

CounseL " Had you forgotten it at that time as well?"

Witness (in confusion). " I, certainly must have."

CounseL " Do you want this jury to believe that, hav-
ing witnessed this horrible scene which you have de-
scribed, you immediately forgot it, and on two different
occasions when you were narrating under oath what
took place in that hospital, you forgot to mention it ? "

235

THE ART OF CROSS-EXAMINATION

Witness. " It escaped my memory.*'

Counsel. "You have testified as a witness before in
this case, have you not ? "

Witness. "Yes, sir."

Counsel " Before the coroner ? "

Witness^ " Yes, sir."

Counsel. " But this sheet incident escaped your
memory then?"

Witness. " It did not"

Counsel (taking in his hands the stenographer's min-
utes of the coroner's inquest). " Do you not recollect
that you testified for two hours before the coroner with-
out mentioning the sheet incident, and were then ex-
cused and were absent from the court for several days
before you returned and gave the details of the sheet
incident ? "

Witness. " Yes, sir ; that is correct"

Counsel. " Why did you not give an account of the
sheet incident on the first day of your testimony ? "

Witness. "Well, it escaped my memory; I forgot
it"

Counsel. "Do you recollect, before beginning j'our
testimony before the coroner, you asked to look at the
affidavit that you had made for the World? "

Witness. "Yes, I had been sick, and I wanted to
refresh my memory."

Counsel. "Do you mean that this scene that you
have described so glibly to-day had faded out of your

236

THE BELLEVUE HOSPITAL CASE

mind then, and you wanted your affidavit to refresh
your recollection ? "

Witness. " No, it had not faded. I merely wanted to
refresh my recollection."

Counsel " Was it not rather that you had made up
the story in your affidavit, and you wanted the affidavit
to refresh your recollection as to the story you had
manufactured ? "

Witness. "No, sir ; that is not true."

The purpose of these questions, and the use made of
the answers upon the argument, is shown by the follow-
ing extract from the summing up : —

" My point is this, gentlemen of the jury, and it is
an unanswerable one in my judgment, Mr. District At-
torney : If Minnock, fresh from the asylum, forgot this
sheet incident when he went to sell his first newspaper
article to the World ; if he also forgot it when he went
to the coroner two days afterward to make his second
affidavit ; if he still forgot it two weeks later when, at
the inquest, he testified for two hours, without mention-
ing it, and only first recollected it when he was recalled
two days afterward, then there is but one inference to
be drawn, and that is, that he never saw it^ because he
could not forget it if he had ever seen it ! And the
important feature is this : he was a newspaper reporter ;
he was there, as the district attorney says, * to observe
what was going on.' He says that he stood by in that
part of the room, pretending to take away the dishes in

237

THE ART OF CROSS-EXAMINATION

order to see what was going on. He was sane, the
only sane man there. Now if he did not see it, it is
because it did not take place, and if it did not take place,
the insane men called here as witnesses could not have
seen it. Do you see the point ? Can you answer it ?
Let me put it again. It is not in mortal mind to believe
that this man could have seen such a transaction as he
describes and ever have forgotten it. Forget it when he
writes his article the night he leaves the asylum and
sells it to the morning World t Forget it two days
afterward when he makes a second important affidavit !
He makes still another statement, and does not mention
it, and even testifies at the coroner's inquest two weeks
later, and leaves it out. Can the human mind draw any
other inference from these facts than that he never saw
it — because he could not have forgotten it if he had
ever seen it ? If ^ never saw it, it did not take place.
He was on the spot, sane, and watching everything
that went on, for the very purpose of reporting it. Now
if this sheet incident did not take place, the insane men
could not have seen it This disposes not only of
Minnock, but of all the testimony in the People's case.
In order to say by your verdict that that sheet incident
took place, you have got to find something that is con-
trary to all human experience ; that is, that this man,
Minnock, having seen the horrible strangling with the
sheet, as he described, could possibly have immediately
forgotten it."

238

THE BELLEVUE HOSPITAL CASE

The contents of the two affidavits made to the
World and the coroner were next taken up, and the
witness was first asked what the occurrence really was
as he now remembered it After his answers, his
attention was called to what he said in his affidavits, and
upon the differences being made apparent, he was asked
whether what he then swore to, or what he now swore
to, was the actual fact ; and if he was now testifying from
what he remembered to have seen, or if he was trying to
remember the facts as he made them up in the affidavit.

Counsel. " What was the condition of the Frenchman
at supper time ? Was he as gay and chipper as when
you said that he had warmed up after he had been walk-
ing around awhile ? "

Witness. "Yes, sir/'

Counsel. "But in your affidavit you state that he
seemed to be very feeble at supper. Is that true? "

Witness. " Well, yes ; he did seem to be feeble."

Counsel. " But you said a moment ago that he warmed
up and was all right at supper time."

Witness. " Oh, you just led me into that."

Counsel. " Well, I won't lead you into anything more.
Tell us how he walked to the table."

Witness. "Well, slowly."

Counsel "Do you remember what you said in the
affidavit?"

Witness. " I certainly do."

Counsel. " What did you say ? "

239

THE

order to see
only sane m
because it f'

the insaiv/

seen it.

Let m

that

-i**^.

"^ f -^ ^^G 3A.

'^^Oe . ""^ ^^«^itur ^'* ^''t^

Pro.

THE BELLEVUE HOSPITAL CASE

holding up the patient, and allowing him to
-kward, and then picking him up again, in order
ce the contrast more apparent with what he had
m previous occasions and had evidently forgotten.
junse/. " I now read to you from the stenographer's
mtes what you said on this subject in your sworn
stimony given at the coroner's inquest. You were
sked, * Was there any violence inflicted on Wednesday
^before dinner time ? ' And you answered, * I didn't see
any.' You were then asked if, up to dinner time at six
%' o'clock on Wednesday night, there had been any violence ;
and you answered : • No, sir ; no violence since Tuesday
night. There was nothing happened until Wednesday
at supper time, somewhere about six o'clock.* Now what
*^ have you to say as to these different statements, both

* given under oath, one given at the coroner's inquest, and
^ the other given here to-day ? "

• j Witness. " Well, what I said about violence may have

been omitted by the coroner's stenographer."

CounseL " But did you swear to the answers that I
have just read to you before the coroner? "

Witness. " I may have, and I may not have. I don't
know."

Counsel. " If you swore before the coroner there was
no violence, and nothing happened until Wednesday
after supper, did you mean to say it ? "

Witness. " I don't remember."

Counsel. "After hearing read what you swore to at
Q 241

THE ART OF CROSS-EXAMINATION

Witness. " I said he walked in a feeble condition."

CounseL " Are you sure that you said anything in the
affidavit about how he walked at all ? "

Witness. " I am not sure."

CounseL "The sheet incident, which you have de-
scribed so graphically, occurred at what hour on Wednes-
day afternoon ? "

Witness. " About six o'clock."

Counsel. " Previous to that time, during the afternoon,
had there been any violence shown toward him ? "

Witness. " Yes ; he was shoved down several times by
the nurses."

CounseL " You mean they let him fall ? "

Witness. " Yes, they thought it a very funny thing to
let him totter backward, and to fall down. They then
picked him up. His knees seemed to be kind of muscle-
* bound, and he tottered back and fell, and they laughed.
This was somewhere around three o'clock in the after-
noon."

CounseL " How many times, Mr. Minnock, would you
swear that you saw him fall over backward, and after
being picked up by the nurse, let fall again ? "

Witness. " Four or five times during the afternoon."

CounseL " And would he always fall backward ? "

Witness. " Yes, sir ; he repeated the operation of tot-
tering backward. He would totter about five feet, and
would lose his balance and would fall over backward."

The witness was led on to describe in detail this pro-

240

THE BELLEVUE HOSPITAL CASE

cess of holding up the patient, and allowing him to
fall backward, and then picking him up again, in order
to make the contrast more apparent with what he had
said on previous occasions and had evidently forgotten.

Counsel. " I now read to you from the stenographer's
minutes what you said on this subject in your sworn
testimony given at the coroner's inquest You were
asked, * Was there any violence inflicted on Wednesday
before dinner time ? * And you answered, * I didn't see
any.' You were then asked if, up to dinner time at six
o'clock on Wednesday night, there had been any violence ;
and you answered : ' No, sir ; no violence since Tuesday
night. There was nothing happened until Wednesday
at supper time, somewhere about six o'clock.' Now what
have you to say as to these different statements, both
given under oath, one given at the coroner's inquest, and
the other given here to-day ? "

Witness. " Well, what I said about violence may have
been omitted by the coroner's stenographer."

CounseL " But did you swear to the answers that I
have just read to you before the coroner? "

Witness. " I may have, and I may not have. I don't
know."

Counsel. " If you swore before the coroner there was
no violence, and nothing happened until Wednesday
after supper, did you mean to say it ? "

Witness. " I don't remember."

Counsel. " After hearing read what you swore to at
Q 241

THE ART OF CROSS-EXAMINATION

Witness. " I said he walked in a feeble condition."

Counsel. " Are you sure that you said anything in the
affidavit about how he walked at all ? "

Witness. " I am not sure."

Counsel. "The sheet incident, which you have de-
scribed so graphically, occurred at what hour on Wednes-
day afternoon ? "

Witness. " About six o'clock."

Counsel. " Previous to that time, during the afternoon,

had there been any violence shown toward him ? "

Witness. " Yes ; he was shoved down several times by

I
the nurses." 1

Counsel " You mean they let him fall ? "
Witness. " Yes, they thought it a very funny thing to
let him totter backward, and to fall down. They then
picked him up. His knees seemed to be kind of muscle-
'bound, and he tottered back and fell, and they laughed.
This was somewhere around three o'clock in the after-
noon."

Counsel " How many times, Mr. Minnock, would you
swear that you saw him fall over backward, and after
being picked up by the nurse, let fall again } "

Witness. " Four or five times during the afternoon."
Counsel " And would he always fall backward } "
Witness. " Yes, sir ; he repeated the operation of tot-
tering backward. He would totter about five feet, and
would lose his balance and would fall over backward."
The witness was led on to describe in detail this pro-

240

THE BELLEVUE HOSPITAL CASE

Counsel. " I now read to you from the stenographer's
minutes what you said on this subject in your sworn
testimony given at the coroner's inquest. You were
asked, • Was there any violence inflicted on Wednesday
before dinner time ? ' And you answered, * I didn't see
any.' You were then asked if, up to dinner time at six
o'clock on Wednesday night, there had been any violence ;
and you answered: 'No, sir; no violence since Tuesday
night. There was nothing happened until Wednesday
at supper time, somewhere about six o'clock.* Now what
have you to say as to these different statements, both
given under oath, one given at the coroner's inquest, and
the other given here to-day ? "

Witness. " Well, what I said about violence may have
been omitted by the coroner's stenographer."

CounseL " But did you swear to the answers that I
have just read to you before the coroner ? "

Witness. " I may have, and I may not have. I don't
know."

Counsel. " If you swore before the coroner there was
no violence, and nothing happened until Wednesday
after supper, did you mean to say it ? "

Witness. " I don't remember."

CounseL "After hearing read what you swore to at
Q 241

THE ART OF CROSS-EXAMINATION

Witness. " I said he walked in a feeble condition."

Counsel. " Are you sure that you said anything in the
affidavit about how he walked at all ? "

Witness. " I am not sure."

CounseL "The sheet incident, which you have de-
scribed so graphically, occurred at what hour on Wednes-
day afternoon ? "

Witness. " About six o'clock."

Counsel. " Previous to that time, during the afternoon,
had there been any violence shown toward him ? "

Witness. " Yes ; he was shoved down several times by
the nurses." *

Counsel. " You mean they let him fall ? " m

Witness. " Yes, they thought it a very funny thing to
let him totter backward, and to fall down. They then
picked him up. His knees seemed to be kind of muscle-
• bound, and he tottered back and fell, and they laughed.
This was somewhere around three o'clock in the after-
noon."

CounseL " How many times, Mr. Minnock, would you
swear that you saw him fall over backward, and after
being picked up by the nurse, let fall again ? "

Witness. " Four or five times during the afternoon."

Counsel. " And would he always fall backward ? "

Witness. " Yes, sir ; he repeated the operation of tot-
tering backward. He would totter about five feet, and
would lose his balance and would fall over backward."

The witness was led on to describe in detail this pro-

240 ,

THE BELLEVUE HOSPITAL CASE

Counsel. " I now read to you from the stenographer's
minutes what you said on this subject in your sworn
testimony given at the coroner's inquest. You were
asked, ' Was there any violence inflicted on Wednesday
before dinner time ? * And you answered, * I didn't see
any.' You were then asked if, up to dinner time at six
o'clock on Wednesday night, there had been any violence ;
and you answered: *No, sir; no violence since Tuesday
night. There was nothing happened until Wednesday
at supper time, somewhere about six o'clock.' Now what
have you to say as to these different statements, both
given under oath, one given at the coroner's inquest, and
the other given here to-day ? "

Witness. " Well, what I said about violence may have
been omitted by the coroner's stenographer."

Counsel. " But did you swear to the answers that I
have just read to you before the coroner ? "

Witness. " I may have, and I may not have. I don't
know."

Counsel. " If you swore before the coroner there was
no violence, and nothing happened until Wednesday
after supper, did you mean to say it ? "

Witness. " I don't remember."

Counsel. "After hearing read what you swore to at
Q 241

THE ART OF CROSS-EXAMINATION

Witness. " I said he walked in a feeble condition."

CounseL " Are you sure that you said anything in the
affidavit about how he walked at all ? "

Witness. " I am not sure."

Counsel. "The sheet incident, which you have de-
scribed so graphically, occurred at what hour on Wednes-
day afternoon ? "

Witness. " About six o'clock."

Counsel. " Previous to that time, during the afternoon,
had there been any violence shown toward him ? "

Witness. " Yes ; he was shoved down several times by
the nurses."

CounseL " You mean they let him fall ? "

Counsel. " How many times, Mr. Minnock, would you
swear that you saw him fall over backward, and after
being picked up by the nurse, let fall again ? "

Witness. " Four or five times during the afternoon."

CounseL " And would he always fall backward ? "

Witness. " Yes, sir ; he repeated the operation of tot-
tering backward. He would totter about five feet, and
would lose his balance and would fall over backward."

The witness was led on to describe in detail this pro-

240

THE BELLEVUE HOSPITAL CASE

Counsel. " I now read to you from the stenographer's
minutes what you said on this subject in your sworn
testimony given at the coroner's inquest. You were
asked, * Was there any violence inflicted on Wednesday
before dinner time ? ' And you answered, * I didn't see
any.' You were then asked if, up to dintier time at six
o'clock on Wednesday night, there had been any violence ;
and you answered : * No, sir ; no violence since Tuesday
night. There was nothing happened until Wednesday
at supper time, somewhere about six o'clock.' Now what
have you to say as to these different statements, both
given under oath, one given at the coroner's inquest, and
the other given here to-day ? "

Witness. " Well, what I said about violence may have
been omitted by the coroner's stenographer."

Counsel. " But did you swear to the answers that I
have just read to you before the coroner ? "

Witness. " I may have, and I may not have. I don't
know."

Counsel. " If you swore before the coroner there was
no violence, and nothing happened until Wednesday
after supper, did you mean to say it ? "

Witness. " I don't remember."

Counsel " After hearing read what you swore to at
Q 241

THE ART OF CROSS-EXAMINATION

the coroner's inquest, do you still maintain the truth of
what you have sworn to at this trial, as to seeing the nurse
let the patient fall backward four or five times, and pick
him up and laugh at him ? "

Witness. " I certainly do."

CaunseL " I again read you from the coroner's min-
utes a question asked you by the coroner himself.
Question by the coroner, * Did you at any time while in
the office or the large room of the asylum see Milliard
fall or stumble ? ' Answer, * No, sir ; I never did.' What
have you to say to that ? "

Witness. " That is correct."

Counsel. " Then what becomes of your statement
made to the jury but fifteen minutes ago, that you saw
him totter and fall backward several times ? "

Witness. " It was brought out later on before the
coroner."

Counsel. "Brought out later on I Let me read to
you the next question put to you before the coroner.
Question, 'Did you at any time see him try to walk
or run away and fall ? ' Answer, * No, I never saw him
fall.' What have you to say to that ? "

Witness. "Well, I must have put in about the tot-
tering in my affidavit, and omitted it later before the
coroner."

At the beginning of the cross-examination it had been
necessary for the counsel to fight with the Court over
nearly every question asked ; and question after question

242

THE BELLEVUE HOSPITAL CASE

was ruled out. As the examination proceeded, however,
the Court began to change its attitude entirely toward
the witness. The presiding judge constantly frowned
on the witness, kept his eyes riveted upon him, and finally
broke out at this juncture: "Let me caution you, Mr.
Minnock, once for all, you are here to answer counsel's
questions. If you can't answer them, say so ; and if you
can answer them, do so ; and if you have no recollection,
say so."

Witness. "Well, your Honor, Mr. has been

cross-examining me very severely about my wife, which
he has no right to do."

Court " You have no right to bring that up. He has
a perfect right to cross-examine you."

Witness (losing his temper completely). "That man
wouldn't dare to ask me those questions outside. He
knows that he is under the protection of the court, or
I would break his neck."

Court. " You are making a poor exhibit of yourself.
Answer the questions, sir."

Counsel. " You don't seem to have any memory at all
about this transaction. Are you testifying from memory
as to what you saw, or making up as you go along ? "

Witness (no answer).

Counsel. Which is it?"

Witness (doggedly). " I am telling what I saw."

Counsel. " Well, listen to this then. You said in your
affidavit : * The blood was all over the floor. It was covered

243

THE ART OF CROSS-EXAMINATION

with Milliard's blood, and the scrub woman came Tues-
day and Wednesday morning, and washed the blood away.'
Is that right?"

Witness. " Yes, sir."

Counsel. "Why, I understood you to say that you
didn't get up Wednesday morning until noon. How
could you see the scrub woman wash the blood
away ? "

Witness. " They were at the farther end of the halL
They washed the whole pavilion. I didn't see them
Wednesday morning; it was Tuesday morning I saw
them scrubbing."

Counsel. " You seem to have forgotten that Milliard,
the deceased, did not arrive at the pavilion until Tuesday
afternoon at four o'clock. What have you to say to
that?"

Witness. " Well, there were other people who got beat-
ings besides him."

Counsel. " Then that is what you meant to refer to in
your affidavit, when speaking of Milliard's blood upon the
floor. You meant beatings of other people ? " ' '

Witness. " Yes sir — on Tuesday."

The witness was then forced to testify to minor details,
which, within the knowledge of the defence, could be con-
tradicted by a dozen disinterested witnesses. Such, for
instance, as hearing the nurse Davis call up the morgue,
the morning after Milliard was killed, at least a dozen
times on the telephone, and anxiously inquire what had

244

THE BELLEVUE HOSPITAL CASE

been disclosed by the autopsy ; whereas, in fact, there was
no direct telephonic communication whatever between
the morgue and the insane pavilion; and the morgue
attendants were prepared to swear that no one had called
them up concerning the Milliard autopsy, and that there
were no inquiries from any source. The witness was next
made to testify affirmatively to minor facts that could be,
and were afterward, contradicted by Dr. Wildman, by Dr.
Moore, by Dr. Fitch, by Justice Hogman, by night nurses
Clancy and Gordon, by Mr. Dwyer, Mr. Hayes, Mr. Fayne,
by Gleason the registrar, by Spencer the electrician, by
Jackson the janitor, and by several of the state's own
witnesses who were to be called later.

By this time the witness had begun to flounder help-
lessly. He contradicted himself constantly, became red
and pale by turns, hesitated before each answer, at times
corrected his answers, at others was silent and made no
answer at all. At the expiration of four hours he left
the witness-stand a thoroughly discredited, haggard, and
wretched object. The court ordered him to return the
following day, but he never was seen again at the
trial.

A week later, his foster-mother, when called to the wit-
ness-chair by the defence, handed to the judge a letter
received that morning from her son, who was in Phila-
delphia (which, however, was not allowed to be shown to
the jury) in which he wrote that he had shaken from
his feet the dust of New York forever, and would never

245

THE ART OF CROSS-EXAMINATION

return ; that he felt he had been ruined, and would be
arrested for perjury if he came back, and requested money
that he might travel far into the West and commence
life anew. It was altogether the most tragic incident
in the experience of the writer.

246

CHAPTER XIV

THE CROSS-EXAMINATION OF JEREMIAH SMITH BY SIR
ALEXANDER COCKBURN IN THE WILLIAM PALMER CASE

CHAPTER XIV

THE CROSS-EXAMINATION OF JEREMIAH SMITH BY SIR
ALEXANDER COCKBURN IN THE WILLIAM PALMER CASE

It was the cross-examination of a Birmingham attor-
ney, named Jeremiah Smith, by Sir Alexander Cockburn,
then Attorney-General and afterward Chief Justice of
England, in the celebrated trial of William Palmer for
taking the life of John Parsons Cook by poison, that
finally turned the tide, in this closely contested case,
against the prisoner, and resulted in his conviction and
execution. An observer of such long experience as Mr.
Justice Stephens said of this cross-examination that " it
was something to be heard and seen, but incapable of
being described."

William Palmer at the time of his trial was thirty-one
years old. He was a physician by profession, but had
for several years prior to his trial given up the active
practice of medicine and had devoted all his time to the
turf. His victim, John Parsons Cook, was also a young
man of decent family, originally intended for the pro-
fession of the law, but after inheriting some ;^ 15,000, also
betook himself to the turf. He kept race horses and
betted considerably, and in the course of his operations

249

THE ART OF CROSS-EXAMINATION

became intimate with Palmer. At the time of his
acquaintance with Cook, Palmer had become involved
financially through forging the name of his mother, a
woman of considerable property, as indorser of his notes.
These indorsements amounted to the sum of ;^ 13,000.
He had eflFected an insurance upon the life of his wife
for ;^ 1 3,000, and the policies of insurance he had given
as collateral on the forged notes. Upon the death of
his wife he was enabled to pay oflf the first notes, but
shortly issued fresh ones to the amount of ;^ 12,500, had
them discounted at the rate of sixty per cent, and gave as
new collateral, policies of insurance of an equal amount
upon his brother's life, which policies had been assigned
to himself. Upon his brother's death, there being a
year's interim between the death of his wife and brother,
the companies in which the insurance had been effected
declined to pay, and Palmer found himself confronted
with suits upon these forged notes and the exposure of
his forgeries.

It was for the supposed intention of getting possession
of Cook's money and race horses that he took the life of
his intimate companion.

The trial was held in the Central Criminal Court,
London, May 14, 1856, Lord Campbell presiding, and
has ever since maintained its reputation as being one of
the most learned trials in the history of the criminal
courts of the world.

H. D. Traill, in the English Illustrated Magazine,

250

CROSS-EXAMINATION OF JEREMIAH SMITH

gives a most graphic account of the incidents during the
cross-examination of Jeremiah Smith.

" ' It was the riding that did it/ exclaimed one of the
greatest criminals of the century in extorted admiration
of the skill with which one of the greatest advocates of
the century had brought Justice in a winner by a short
head in one of the century's greatest trials. Sir Alex-
ander Cockburn is said to have been more proud of this
tribute from the eminent sportsman and poisoner whom
he hunted to the gallows post, than of any other of the
many triumphs of his brilliant career. And undoubtedly
it has all the ring of one of those utterances which come
straight from the heart and attest their source by taking
shape in the form of words most familiar to the speaker's
lips. There is plenty of evidence to the critical attention
with which Mr. William Palmer observed the jockeyship
of the attorney in driving that terribly exciting race for
life.

" There exists, or existed once, a slip of paper about
six inches long by an inch broad — just such a slip, in
fact, as a man might tear irregularly off the top of a
sheet of foolscap, which bears this calm and matter-of-
fact legend, more impressive than the most impassioned
prose. ' I suppose you think that last witness did harm.'
It is one of those notes which Palmer subscribed from
time to time and turned over to his counsel to read and,
if necessary, reply to. There is no sign of trembling in
the hand that wrote it. Yet it was written — this one —

2SI

THE ART OF CROSS-EXAMINATION

just at the close of Sir Alexander Cockbum's memorable
cross-examination. It was the conviction of the expert
section of the audience that when the attorney-general
resumed his seat, the halter was knotted around the neck
of the prisoner too firmly to be loosed. There is little
doubt that the doomed wretch read as much in the face
of his counsel, and that the outward indifference of the
hastily penned inquiry which he flung across to them
must have caused a silent agony of doubt and dread.

" Palmer, of course, was not as well accustomed to
observe the manners of the presiding judge as were the
professional spectators of the scene, but if so, he would
have drawn the worst possible augury from Lord Camp-
bell's increasing politeness to him after this incident in
the trial — a form of demeanor toward a prisoner which
always indicated that in that distinguished judge's
opinion, his doom was certain.

" Yet the cross-examination of Mr. Smith, important
as its consequences are said to have been, might easily
be quoted as a very doubtful illustration of the value of
this formidable engine for the extraction, or supposed
extraction, of the truth.

" Its effect upon the witness himself left nothing to
be desired from the point of view of the operator. No
abbreviation, in fact, can give the effect of it. The wit-
ness's efforts to gain time, and his distress as the various
answers were extorted from him by degrees, may be
faintly traced in the report. His face was covered with

252

CROSS-EXAMINATION OF JEREMIAH SMITH

sweat, and the papers put into his hands shook and
rustled. These papers, it must be admitted, were some
of them of a sufficiently agitating character. Mr. Smith
had had to confess with great reluctance that he had
witnessed the assignment of a policy for ;^ 13,000 by
Walter to William Palmer, who was suspected, and
indeed as good as known, to have been guilty of murder-
ing him ; he had had to confess that he wrote to an office
to eflFect an insurance for ;^ 10,000 on the life of a groom
of Palmer's in receipt of ;^i a week as wages; he had
been compelled to admit the self-impeachment of having
tried, after Walter Palmer's death, to get his widow to
give up her claim on the policy. The result was that
Lord Campbell, in summing up, asked the jury whether
they could believe a man who so disgraced himself, in ^
the witness-box. The jury thought they couldn't, and
they didn't. The witness, whose evidence was to the ef-
fect that Palmer was not at his victim's bedside, but some
miles away, at a time when, on the theory of the prose-
cution, he was substituting poisonous drugs for the
medicine supplied to the sick man by the doctor, was dis-
believed. Yet it is nevertheless tolerably certain from
other evidence of an unimpeachable kind that Jeremiah
Smith was speaking the truth.^

The text of the cross-examination that follows is taken
from the unabridged edition of the Times' " Report of the
Trial of William Palmer," containing the shorthand notes
taken from day to day, and published in London in 1856.

253

THE ART OF CROSS-EXAMINATION

Attorney-General. " Are you the gentleman who took
Mr. Myatt to Stafford Gaol ? "

Smith. " I am."

Attomey-General. " Have you known Palmer long } "

Smith. " I have known him long and very intimately,
and have been employed a good deal as an attorney by
Palmer and his family."

Attorney-General. " In December, 1854, did he apply
to you to attest a proposal of his brother, Walter Palmer,
for ;^ 1 3,000 in the Solicitors and General Insurance
Office?"

Smith. " I cannot recollect ; if you will let me see the
document, I will tell you."

Attorney-General. " Will you swear that you were not
applied to ? "

Smith. " I will not swear either that I was not applied
to for that purpose or that I was. If you will let me
see the document, I shall recognize my writing at
once."

Attorney-General. " In January, 1855, were you applied
to by Palmer to attest a proposal of his brother for ;^i 3,000
in the Prince of Wales Office ? "

Smith. " I don't recollect."

Attorney-General. "Don't recollect! Why, ;^ 13,000
was a large sum for a man like Walter Palmer, wasn't
it, who hadn't a shilling in the world ? "

Smith. " Oh, he had money, because I know that he
lived retired and carried on no business."

254

CROSS-EXAMINATION OF JEREMIAH SMITH

Attorney-General. " Didn't you know that he was an
uncertified bankrupt ? "

Smith. " I know that he had been a bankrupt some
years before, but I did not know that he was an uncer-
tified bankrupt. I know that he had an allowance from
his mother, but I do not know whether he had money
from any other source. I believe that his brother, William
[the prisoner], gave him money at different times."

Attorney-General. "Where, in the course of 1854 and
1855, were you living — in Rugeley .?"

Smith. " In 1854 I think I resided partly with William
Palmer, and sometimes at his mother's."

Attorney-General. "Did you sometimes sleep at his
mother's?"

Smith. "Yes."

Attorney-General. " When you did that, where did you
sleep?"

Smith. " In a room."

Attorney-General. "Did you sleep in his mother's
room — on your oath, were you not intimate with her —
you know well enough what I mean ? "

Smith. " I had no other intimacy, Mr. Attorney, than
a proper intimacy."

Attorney-General. " How often did you sleep at her
house, having an establishment of your own at Rugeley ? "

Smith. " Frequently. Two or three times a week."

Attorney-General. "Are you a single or a married
man?"

255

THE ART OF CROSS-EXAMINATION

Smith. " A single man."

Attorney-GeneraL " How long did that practice of
sleeping two or three times a week at Mrs. Palmer's
continue ? "

Smith. " For several years."

Attorney-General. " Had you your own lodgings at
Rugeley at the time ? "

Smith. " Yes. all the time."

Attorney-General. " How far were your lodgings from
Mrs. Palmer's house ? "

Smith. " I should say nearly quarter of a mile."

Attorney-General. " Explain how it happened that
you, having your own place of abode within a quarter of
a mile, slept two or three times a week at Mrs. Palmer's."

Smith. " Sometimes her son Joseph or other members
of her family were on a visit to her, and I went to see
them."

Attorney-General. " And when you went to see those
members of her family, was it too far for ypu to return a
quarter of a mile in the evening ? "

Smith. " Why, we used to play a game of cards, and
have a glass of gin-and- water, and smoke a pipe perhaps;
and then they said, * It is late — you had better stop all
night ; ' and I did. There was no particular reason why
I did not go home that I know of."

Attorney-General. " Did that go on for three or four
years ? "

Smith. "Yes; and I sometimes used to stop there

256

CROSS-EXAMINATION OF JEREMIAH SMITH

when there was nobody there at all — when they were all
away from home, the mother and all."

Attomey-GeneraL "And you have slept there when
the sons were not there and the mother was ? "

Smith. "Yes,"

Attorney-GeneraL " How often did that happen? "

Smith. " Sometimes for two or three nights a week,
for some months at a time, and then perhaps I would not
go near the house for a month."

Attomey-GeneraL " What did you stop for on those
nights when the sons were not there ; there was no one
to smoke and drink with then, and you might have gone
home, might you not ? "

Smith. " Yes ; but I did not"

Attorney-General " Do you mean to say, on your oath,
that there was nothing but a proper intimacy between
you and Mrs. Palmer ? "

Smith. "I do."

Attomey-GeneraL " Now I will turn to another sub-
ject. Were you called upon to attest another proposal
for ;^ 1 3,000 by Walter Palmer in the Universal Office?"

Smith. " I cannot say ; if you will let me see the pro-
posal, I shall know."

Attorney-General " I ask you, sir, as an attorney and
a man of business, whether you cannot tell me whether
you were applied to by William Palmer to attest a pro-
posal for an assurance for ;^ 13,000 on the life of Walter
Palmer?"

THE ART OF CROSS-EXAMINATION

Smith. " I say that I do not recollect it. If I could
see any document on the subject, I daresay I should
remember it."

Attamey-GeneraL " Do you remember getting a £^
note for attesting an assignment by Walter Palmer to his
brother of such a policy ? "

Smith. "Perhaps I might. I don't recollect posi-
tively."

Attorney-General (handing a document to witness).
" Is that your signature ? "

Smith. " It is very like my signature."

Attorney-General. " Have you any doubt about it ? "

Smith (after considerable hesitation). " I have some
doubt"

Attorney-General. " Read the document, and tell me,
on your oath, whether it is your signature."

Smith. " I have some doubt whether it is mine."

Attorney-General " Read the document, sir. Was it
prepared in your office ? "

Smith. " It was not"

Attorney-General " I will have an answer from you
on your oath one way or another. Isn't that your hand-
writing ? "

Smith. " I believe that it is not my handwriting. I
think that it is a very clever imitation of it"

Attorney-General " Will you swear that it is not ? "

Smith. " I will. I think that it is a very good imita-
tion of my handwriting."

258

CROSS-EXAMINATION OF JEREMIAH SMITH

Baron Alder son. " Did you ever make such an attes-
tation?"

Smith. " I don't recollect, my Lord."

Attorney-General. " Look at the other signature there,
* Walter Palmer,' — is that his signature ? "

Smith. " I believe that is Walter Palmer's."

Attorney-General. "Look at the attestation and the
words * signed, sealed, and delivered'; are they in Mr.
Pratt's handwriting?"

Smith. "They are."

Attorney-General "Did you receive that from Mr.
Pratt?"

Smith. "Most likely I did; but I can't swear
that I did. It might have been sent to William
Palmer."

Attorney-General. " Did you receive it from William
Palmer?"

Smith. " I don't know. Very likely I did."

Attorney-General " Did William Palmer give you that
document ? "

Smith. " I have no doubt he did."

Attorney-General " If that be the (document he gave
you, and those are the signatures of Walter Palmer and
of Pratt, is not the other signature yours ? "

Smith. " I'll tell you, Mr. Attorney — "

Attorney-General "Don't * Mr. Attorney' me, sir!
Answer my question. Isn't that your handwriting?"

Smith. " I believe it not to be."

259

THE ART OF CROSS-EXAMINATION

Attorney-General. " Will you swear that it isn't? "

Smith. " I believe that it is not."

Attomey-GeneraL **Did you apply to the Midland
Counties Insurance Office in October, 1855, to be ap-
pointed their agent at Rugeley?"

Smith. « I think I did."

Attomey-GeneraL " Did you send them a proposal on
the life of Bates for ;^i 0,000 — you yourself?"

Smith. "I did."

Attorney-General. " Did William Palmer apply to you
to send that proposal ? "

Smith. " Bates and Palmer came together to my office
with a prospectus, and asked me if I knew whether there
was any agent for that company in Rugeley. I told
them I had never heard of one, and they then asked me
if I would write and get the appointment, because Bates
wanted to raise some money."

Attorney-General "Did you send to the Midland
Office and get appointed as their agent in Rugeley,
in order to eflFect that ;^ 10,000 insurance on Bates's
life?**

Smith. "I did."

Attorney-General. "Was Bates at that time superin-
tending William Palmer's stud and stables?"

Smith. "He was."

Attorney-General " At a salary of ;^i a week ? "

Smith. " I can't tell his salary."

Attorney-General. " After that did you go to the widow

260

CROSS-EXAMINATION OF JEREMIAH SMITH

of Walter Palmer to get her to give up her claim on the
policy of her husband ? "

Smith. "I did."

Attomey-GeneraL " Where was she at that time ? "

Smith. " At Liverpool."

Attom^-General. •* Did you receive a document from
Pratt to take to her?"

Smith. " William Palmer gave me one which had been
directed to him."

Attorney-General. " Did the widow refuse? "

Smith. '' She said she should like her solicitor to see
it ; and I said, • By all means.' "

Attorney-General. " Of course I Didn't she refuse to
do it — didn't you bring it back? "

Smith. '' I brought it back as I had no instructions to
leave it"

Attorney-General. "Didn't she say that she under-
stood from her husband that the insurance was for

;^I0,000?"

Mr. Serjeant Shee objected to this question* What
passed between the widow and witness could be no evi-
dence against the prisoner.

The Attorney-General said that the question was in-
tended to affect the credit of the witness, and with that
view it was most important.

The court ruled that the question could not be put

Attorney-General. " Do you know that Walter Palmer
obtained nothing for making that assignment ? "

96i

THE ART OF CROSS-EXAMINATION

Smith. *' I believe that he ultimately did get something
for it"

Attamey-GeneraL " Don't you know that what he got
was a bill for ;^20o? ^

Smith. " Yes ; and he had a house furnished for him."

Attomey-GeneraL " Don't you know that he got a bill
for;^200?*'

Smith. "Yes."

Attamey-GeneraL " And don't you know that that bill
was never paid ? "

Smith. " No, I do not"

Attomey-General. " Now, I'll refresh your memory a
little with regard to those proposals [handing witness a
document]. Look at that, and tell me whether it is in
your handwriting."

Smith. "It is."

Attorney-General. " Refreshing your memory with
that, I ask you were you not applied to by William
Palmer in December, 1854, to attest a proposal on the
life of his brother, Walter, for ;^ 13,000 in the Solicitors
and General Insurance Office ? "

Smith. " I might have been."

Attorney-General. "Were you or were you not, sir.?
Look at that document, and say have you any doubt
upon the subject ? "

Smith. " I do not like to speak from memory with
reference to such matters."

Attorney-General. " No ; but not speaking from mem-

262

CROSS-EXAMINATION OF JEREMIAH SMITH

ory in an abstract sense, but having your memory re-
freshed by a perusal of that document, have you any
doubt that you were applied to ? "

Smith. "I have no doubt that I might have been
applied to."

Attorney-General. " Have you any doubt that in Janu-
ary, 1855, you were called on by William Palmer to
attest another proposal for /" 13,000 on his brother's
life in another office ? Look at that document and tell
me.

Smith. " I see the paper, but I don't know ; I might
have signed it in blank." ^^

Attorney-General. " Do you usually sign attestations
of this nature in blank ? "

Smith. " I have some doubt whether I did not sign
several of them in blank."

Attorney-General "On your oath, looking at that
document, don't you know that William Palmer applied
to you to attest that proposal upon his brother's life for
;^i3.ooo?"

Smith. "He did apply to me to attest proposals in
some offices."

Attorney-General " Were they for large amounts ? "

Smith. " One was for ;^ 13,000."

Attorney-General. " Were you applied to to attest an-
other for the like sum in the Universal Office ? "

Smith. " I might be."

Attorney-General. " They were made much about the

263

THE ART OF CROSS-EXAMINATION

same time, were they not ? You did not wait for the
answers to come back to the first application before you
made the second ? "

Smith. ''I do not know that any answers were re-
turned at all."

Attomey-GmeraL ** Will you swear that you were not
present when Walter Palmer executed the deed assigning
the policy upon his life to his brother, William Palmer?
Now, be careful, Mr. Smith, for depend upon it you shall
hear of this again if you are not"

Smith. " I will not swear that I was, I think I was
not. I am not quite positive."

(Very few of the answers to these questions of the
Attorney-General were given without considerable hesi-
tation, and the witness appeared to labor under a sense
of embarrassment which left a decidedly unfavorable
impression upon the minds of the audience.)

Attorney-General. " Do you know that the ;^20o bill
was given for the purpose of enabling William Palmer
to make up a sum of ;^500 ? "

Smith. " 1 believe it was not ; for Cook received abso-
lutely from me ;^200. If I am not mistaken, he took it
with him to Shrewsbury races — not the last races."

Attorney-General. "In whose favor was the bill
drawn ? "

Smith. " I think in favor of William Palmer. I don't
know what became of it I have never seen it since. I
cannot state with certainty who saw me on the Monday ;

364

CROSS-EXAMINATION OF JEREMIAH SMITH

but I called at the Talbot Arms, and went into Cook's
room. One of the servants gave me a candle. As well
as I can remember, the servant who did so was either
Bond, Mills, or Lavinia Barnes, I can't say which."

265

CHAPTER XV

THE CROSS-EXAMINATION OF RUSSELL SAGE BY MR.
JOSEPH H. CHOATE IN THE LAIDLAW-SAGE CASE

CHAPTER XV

THE CROSS-EXAMINATION OF RUSSELL SAGE BY MR, JOSEPH
H. CHOATE IN THE LAIDLAW-SAGE CASE

One of the most recent cross-examinations to be made
the subject of appeal to the Supreme Court General
Term and the New York Court of Appeals was the
cross-examination of Russell Sage by Mr. Joseph H.
Choate, in the famous suit brought against the former
by William R. Laidlaw. Sage was defended by the late
Edwin C. James, and Mr. Choate appeared for the
plaintiff, Mr. Laidlaw.

On the fourth day of December, 1891, a stranger by
the name of Norcross came to Russell Sage's New
York office and sent a message to him that he wanted
to see him on important business, and that he had a
letter of introduction from Mr. John Rockefeller. Mr.
Sage left his private office, and going up to Norcross,
was handed an open letter which read, " This carpet-bag
I hold in my hand contains ten pounds of dynamite, and
if I drop this bag on the floor it will destroy this building
in ruins and kill every human being in it I demand
twelve hundred thousand dollars, or I will drop it. Will
you give it ? Yes or no ? "

269

THE ART OF CROSS-EXAMINATION

Mr. Sage read the letter, handed it back to Norcross,
and suggested that he had a gentleman waiting for him
in his private office, and could be through his business
in a couple of minutes when he would give the matter
his attention.

Norcross responded : " Then you decline my proposi-
tion ? Will you give it to me ? Yes or no ? '' Sage
explained again why he would have to postpone giving
it to him for two or three minutes to get rid of some one
in his private office, and just at this juncture Mr. Laid-
law entered the office, saw Norcross and Sage without
hearing the conversation, and waited in the anteroom
until Sage should be disengaged. As he waited, Sage
edged toward him and partly seating himself upon the
table near Mr. Laidlaw, and without addressing him,
took him by the left hand as if to shake hands with him,
but with both his own hands, and drew Mr. Laidlaw
almost imperceptibly around between him and Norcross.
As he did so, he said to Norcross, " If you cannot trust
me, how can you expect me to trust you ? "

With that there was a terrible explosion. Norcross
himself was blown to pieces and instantly killed. Mr.
Laidlaw found himself on the floor on top of Russell
Sage. He was seriously injured, and later brought suit
against Mr. Sage for damages upon the ground that he
had purposely made a shield of his body from the ex-
pected explosion. Mr. Sage denied that he had made
a shield of Laidlaw or that he had taken him by the

270

THE CROSS-EXAMINATION OF RUSSELL SAGE

hand or altered his own position so as to bring Laid-
law between him and the explosion.

The case was tried four times* It was dismissed by
Mr. Justice Andrews, and upon appeal the judgment
was reversed. On the second trial before Mr. Justice
Patterson the jury rendered a verdict of $25,000 in favor
of Mr. Laidlaw. On appeal this judgment in turn was
reversed. On a third trial, also before Mr. Justice
Patterson, the jury disagreed; and on the fourth trial
before Mr, Justice Ingraham the jury rendered a ver-
dict in favor of Mr. Laidlaw of $40,000, which judg-
ment was sustained by the General Term of the
Supreme Court, but subsequently reversed by the
Court of Appeals.

Exception on this appeal was taken especially to the
method used in the cross-examination of Mr. Sage by
Mr. Choate. Thus the cross-examination is interesting,
as an instance of what the New York Court of Appeals
has decided to be an abuse of cross-examination into
which, through their zeal, even eminent counsel are
sometimes led, and to which I have referred in a pre-
vious chapter. It also shows to what lengths Mr.
Choate was permitted to go upon the pretext of test-
ing the witness's memory.

It was claimed by Mr. Sage's counsel upon the appeal
that " the right of cross-examination was abused in this
case to such an extent as to require the reversal of this
monstrous judgment, which is plainly the precipitation

271

THE ART OF CROSS-EXAMINATION

and product of that abuse/* And the Court of Appeak
unanimously took this view of the matter.

The portions of the cross-examination that were espe-
cially excepted to were the rejected jurors* conversation
with Mr. Sage ; the defendant's lack of sympathy for the
plaintiff; the article in the New York World; the de-
fendant's omission to give warning of the impending
explosion, and the defendant's wealth and the extent and
character of his business.

Mr. Choate. " I hope you are very well this morning,
Mr. Sage?"

Mr. Sage. " Yes, sir."

Mr. Choate. " Do you remember swearing to the
answer in this case?"

Mr. Sage. " I didn't hear you, sin"

Mr. Choate. " Which is your best ear? "

Mr. Sage. "This."

Mr. Choate. " Do you remember swearing to the
answer in this case?"

Mr. Sage. " I do."

Mr. Choate. " Who prepared it for you ? "

Mr. Sage. " It was prepared by my counsel."

Mr. Choate. " Counsel in whom you have every con-
fidence ? "

Mr. Sage. "Yes, sir."

Mr. Choate. " Prepared after you had given a careful
statement of your case to them ? "

Mr. Sage. " Such statement as I thought necessary."

272

THE CROSS-EXAMINATION OF RUSSELL SAGE

Mr. Choate. " Did you mean to conceal anything from
them?"

Mr. Sage. "No, sir."

Mr. Choate. "Did you read the complaint over with
your counsel before you swore to the answer? "

Mr. Sage. " I presume I did."

Mr. Choate. "Just imagine you were down at the
Stock Exchange now, and speak loud enough so that
gentleman can hear you."

Mr. Sage. " I will endeavor to."

Mr. Choate. " Did you read your answer before you
swore to it?"

Mr. Sage. " I did, sir."

Mr. Choate. " It was true, then, was it not ? "

Mr. Sage. " I believed it to be so."

Mr. Choate. " I call your attention to a statement
made in the answer." (Mr. Choate here read from Mr*
Sage's answer in which he swore that he was in conver-
sation with Mr. Norcross while Mr. Laidlaw was in the
office, Mr. Sage having testified differently the day be-
fore.) "Was that true?"

Mr. Sage. " I don't know. I didn't catch it."

Mr. Choate. " I didn't want you to catch it I wanted
you to answer it. You observe, do you not, that the
answer says that the plaintiff Laidlaw was in your office
while you were conversing with the stranger ? "

Mr. Sage. " I observe that, but I want to state the
fact as I did yesterday."

s 273

THE ART OF CROSS-EXAMINATION

Mr. Choate. " Answer my question. Did you observe
it?"

Mr. Sage. " I did."

Mr. Choate. " Put down your fist and answer my
question."

Mr. Sage. " I answered it."

Mr. Choate. " I think we will get along as soon as
you answer my questions instead of making speeches.
Did you observe that your answer states that before
Laidlaw was in the office, and while you were convers-
ing with the stranger, the stranger had already handed
you a note demanding money ? "

Mr. Sage. " He had done no such thing."

Mr. Choate. " Do you observe that your answer states
that?"

Mr. Sage. " Your reading states it so, but the fact is
as I have stated it."

Mr. Choate. " Was not your answer true as you swore
to it?"

Mr. Sage. " No, sir ; not on your interpretation."

Mr. Choate. " How came you to swear to it, if it is
not true ? "

Mr. Sage. " I suppose that was prepared afterward by
counsel, as you prepare papers."

Mr. Choate. " I never prepare papers. What are you
talking about ? "

Mr. Sage. "You have the reputation of preparing
papers."

274

THE CROSS-EXAMINATION OF RUSSELL SAGE

Mr. Choate. "Do you mean that your lawyers dis-
torted the facts from what you stated ? "

Mr. Sage. " I suppose they prepared the papers in
their usual form."

Mr. Choate. "In the usual form? Was there ever
any usual form for a case like this?"

Mr. Sage. " Yes, sin"

Mr. Choate. "Did you ever know of such a case
before?"

Mr. Sage. " No, sir."

(Mr. Choate then pursued this inquiry, in various
forms, for at least one hundred questions more, and get-
ting no satisfactory answer, he continued, " We will drop
the subject and go to something else.")

Mr. Choate. "Since Mr. Laidlaw made this claim
against you, you have been very hostile against him,
have you not?"

Mr. Sage. " No, sir, not hostile."

Mr. Choate. " Have you not called him all sorts of
bad names ? "

Mr. Sage. " I said he did not tell the truth."

Mr. Choate. " Have you denounced him as a black-
mailer ? When did you do that ? "

Mr. Sage. " I might have said that a man who would
persevere in making a statement that there was not a
word of truth in, and demanding a sum of money — I
don't know what you call it. CalFit what you please."

Mr. Choate. " Did you not say that you would see

275

THE ART OF CROSS-EXAMINATION

Laidlaw a tramp before he would get through with this
case ? "

Mr. Sage. " I have no recollection of any such
thing."

Mr. Choate. " Will you swear you didn't ? "

Mr. Sage. " I won't swear. I might"

Mr. Choate. "What?"

Mr. Sage. " I won't testify to what I have said."

Mr. Choate. ** I want you to say whether you will swear
that you said that you would see Laidlaw a tramp be-
fore he got through."

Mr. Sage. " I don't know."

Mr. Choate. " Do you not know that when the last
juror was excused from the jury-box, or discharged, he
stated in the presence of the court and the other jury-
men that after the verdict rendered by the former jury
in this case against you, Mrs. Sage went to him at
Tiffany's and stated that the verdict was a great outrage,
and that Mr. Sage would never pay a cent?" (This
question was bitterly objected to by Mr. James, but
allowed by the court.)

Mr. Sage. '* I want to state right here, if you will
permit — "

Mr. Choate. " The first business is to answer this
question."

Mr. Sage. " I don't know it. I know that Mrs. Sage
denied ever having said anything of the kind."

Mr. Choate. " You think the juror told a falsehood ? "

276

THE CROSS-EXAMINATION OF RUSSELL SAGE

Mr. Sage. " Mrs. Sage has no recollection of having
said that"

Mr. Choate. " Did you say to anybody that it was an
outrage ? "

Mr. Sage. " I have no recollection. I think it is the
greatest outrage that was ever attempted by a respectable
lawyer."

Mr. Choate. " Did you not say that you would spend
$100,000 dollars in defending this case rather than pay a
cent to Laidlaw ? "

Mr. Sage. " I have great confidence in the courts of
this state and the United States, and I am fighting for
other people besides myself, and I propose to have this
case settled by the highest courts."

Mr. Choate. " No matter what this jury says ? "

Mr. Sage. " I have great respect for them that they
will decide the case rightly. I want to know if a man
can come into my office, and because a tramp drops in
there and an accident happens, and an injury done, I
am responsible for that ? "

Mr. Choate. " These harangues of yours take a great
deal of time. I ask you whether or not you knew that
Laidlaw at the time of this accident had been very badly
hurt?"

Mr. Sage. " Yes, sir ; I knew he had been."

Mr. Choate. " Do not you know he was laid up in the
hospital helpless ? "

Mr. Sage. " I understand he was. Yes, sir."

277

THE ART OF CROSS-EXAMINATION

Mr. Choate. " Did it ever occur to you to see what you
could do for him ? "

Mr, Sage. "Yes, sir. I sent my brother-in-law to inquire
after him twice."

Mr. Choate. " Did you visit him yourself? "

Mr. Sage. " I did not."

Mr. Choate. " Did you do an5rthing to relieve his
sufferings?"

Mr. Sage. " I was not called upon to do anything of
the kind."

Mr. Choate. " I did not ask you whether you were
called upon. I asked whether you did ? "

Mr. Sage. " I did not."

Mr. Choate. " Did not you refrain from going to see
him because you were afraid if you did he would make a
claim upon you ? "

Mr. Sage. " No, sir."

Mr. Choate. " Did you care whether he was going to
get cured or not ? "

Mr. Sage. " It is an outrage to ask such a question."

Mr. Choate. " Did you have a grandnephew, Chapin,
at this time?"

Mr. Sage. " Yes."

Mr. Choate. " Was he assistant editor of the World
at that time?"

Mr. Sage. "Yes."

Mr. Choate. " Shortly after the explosion, did he come
to see you and have a chat with you ? "

278

THE CROSS-EXAMINATION OF RUSSELL SAGE

Mr. Sage. " Yes."

Mr. Choate. " Did you afterward read an article
published in the New York Worlds headed, *A Chat
with Russell Sage,' and giving an interview with
you?"

Mr. Sage. " Yes."

Mr. Choate. " When you read in that article : • He
looks as vigorous as at any time before the time of the
assassination. His face bears almost no marks of the
glass that had got into it after the explosion. It was
clean shaven; in fact, Mr. Sage had arisen yesterday
morning and shaved himself,' did that accord with your
recollection at the time you read it ? "

Mr. Sage. " No, sir ; it did not I have stated it was
a gross exaggeration."

Mr. Choate. " When the article continued, * The only
thing that impressed one was that there was a face of an
old man, hearty and robust, tenacious of life and good
for many years.' Did that accord with your recollection
at the time?"

Mr. Sage. " No, sir ; it was an exaggeration. I was
very badly scarred all over my face."

Mr. Choate. " When you read in that article : * It was
more surprising though, when Mr. Sage arose, and help-
ing himself up at full length, exhibited all his accustomed
power of personality. He was like a warrior after battle,
a warrior who has come from the thick of the fight, cov-
ered with the dust of conflict, yet without a hurt to body

279

THE ART OF CROSS-EXAMINATION

or limb.' Did that accord when you read it with your
then present recollection ? "

Mr. Sage. " No, sir, it did not. This is the third time
you have read those articles to the jury in this case ; it
is like the Fourth of July oration or the Declaration
of Independence."

(Mr. Choate continued and was allowed to read from
this newspaper article, although his questions were con-
stantly and urgently objected to on the part of the de-
fence, and although Mr. Sage said that he did not read
half the article " because it was an exaggerated state-
ment from beginning to end, as most paper interviews
are." Mr. Choate here went into an exhaustive examina-
tion as to the details of the accident, comparing the
witness's statements at previous trials with the statements
at this trial, and then continued : —

Mr. Choate. " Everything you did after you once ap-
preciated the danger you were in, having read the threat
contained in the letter the stranger handed you, was to
gain time, was it not ? "

Mr. Sage. "Yes, sir."

Mr. Choate. " You knew at that time, did you not,
that Laidlaw and Norcross were in the room ? Why did
you not tell them to step into your private room ? "

Mr. Sage. " I will tell you very frankly it would have
been almost certain death to six or seven men. There
were three other men in that room with only board par-
titions between. It would have infuriated the stranger,

280

THE CROSS-EXAMINATION OF RUSSELL SAGE

and would have made him disregard me and drop the
bag."

Mr. Choate. " Did you think of the danger that Laid-
law and Norcross were in ? **

Mr. Sage. " No more than the other clerks. We were
all alike."

Mr. Choate. " And the reason you did not tell them
to go into the other room was that they would even then
not be out of danger? "

Mr. Sage. " I thought it would displease Norcross,
and show that I was trying to do something to head him
ofiF."

Mr. Choate. " And he would allow the bag to drop? "

Mr. Sage. "Yes, sir."

Mr. Choate. " And kill you ? "

Mr. Sage. " Kill me and kill the whole of us."

Mr. Choate. " What is your business ? "

Mr. Sage. " My business is banker and broker."

Mr. Choate. " Why do you call yourself a banker? **

Mr. Sage. " Because I buy stock and discount paper
and make loans."

Mr. Choate. "You are a money lender, are you
not?"

Mr. Sage. * Sometimes I have money to loan."

Mr. Choate. * At various rates of interest ? "

Mr. Sage. " Sometimes."

Mr. Choate. " Var3dng from six to sixty per cent ? "

Mr. Sage. " Oh, no."

281

THE ART OF CROSS-EXAMINATION

Mr. Choate. " What is the other part of your busi-
ness?"

Mr. Sage. " My business is operating railroads."

Mr. Choate. " How many railroads do you operate ? "

These questions were strenuously objected to, where-
upon Mr. Choate said to the court, " I think I can show
that this man has so many things in his head, that he is
so full of a£Fairs, that he is not a competent witness at
any time to any transaction."

Mr. Sage. " I am operating two."

Mr. Choate. "Are they large railroads or horse rail-
roads?"

Mr. Sage. " Well, one of them is a large one."

Mr. Choate. "You help run several banks, do you
not?"

Mr. Sage. " I am not running any banks, only a
director."

Mr. Choate. " Are you a director in two banks ? "

Mr. Sage. " Yes, sir."

Mr. Choate. " And trust companies ? "

Mr. Sage. "Yes, sir."

Mr. Choate. " In the Manhattan Elevated R. R.?"

Mr. Sage. " Yes, sir."

Mr. Choate. " In the Western Union ? "

Mr. Sage. "Yes, sir."

Mr. Choate. " In the Missouri Pacific? "

Mr. Sage. " Yes, sir."

Mr. Choate. " In the Union Pacific? "

282

THE CROSS-EXAMINATION OF RUSSELL SAGE

Mr. Sage. "Yes, sir/'

Mr. Choate. "This stock ticker that stood by the
desk in the adjoining room, did you keep run of it your-
self?"

Mr. Sage. "Yes, sir."

Mr. Choate. "You take care of your own estate be-
sides, do you not ? "

Mr. Sage. " Yes, sir."

Mr. Choate. " That took a good deal of time ? "

Mr. Sage. " It took some time."

Mr. Choate. " How much time did that occupy ? "

Mr. Sage. " I have my assistants, my clerks, the same
as you have in your office."

Mr. Choate. "You loan money, you manage these
railroads, banks, trust companies, and the other affairs
that you have mentioned. Did you not have dealings in
stocks?"

Mr. Sage. "Oh, I buy and sell securities occasion-
ally."

Mr. Choate. " Do you not deal in puts and calls and
straddles?"

Mr. Sage. " I have in years gone by."

Mr. Choate. " These affairs take your whole time, do
they not?"

Mr. Sage. " No, sir; I have leisure. I do not devote
all my time to business."

Mr. Choate. " I think that is all."

283

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